State v. Lamar, 54582

• Decision Date: 17 October 1973
• Docket Number: No. 54582,54582
• Citation: 210 N.W.2d 600
• Parties: STATE of Iowa, Appellee, v. Dennis LAMAR, Appellant.
• Court: Iowa Supreme Court

Page 600

210 N.W.2d 600

STATE of Iowa, Appellee, v. Dennis LAMAR, Appellant.

No. 54582.

Supreme Court of Iowa.

Oct. 17, 1973.

William L. Kutmus, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., C. Joseph Coleman, Jr., Asst. Atty. Gen., and Ray Fenton, Co. Atty., for appellee.

Submitted to MOORE, C.J., and MASON, RAWLINGS, LeGRAND and UHLENHOPP, JJ.

RAWLINGS, Justice.

Claiming errors regarding his asserted entrapment defense defendant appeals from judgment on jury verdict finding him guilty of robbery with aggravation. We affirm.

July 9, 1970, at about 4:00 p.m., Bill Rappaport, manager of Super Valu Store at 2627 E. University, Des Moines, was robbed at gunpoint. Defendant, Dennis Lamar, and another man were arrested in the act by police officers admittedly present as the result of tips by an informer or informers.

Upon being charged with aggravated robbery Lamar pled not guilty, then moved for a pretrial production of exculpatory evidence. In support thereof he asserted what is known as the defense of entrapment. At time of hearing on that motion Lamar sought to elicit from testifying policemen the identity of any informer. Trial court at all times sustained the officers' privilege to refuse such disclosure. Some of them did, however, admit the robbery related stakeout of the store resulted from several tips, some by phone, one by a person who appeared at the police station the day of the robbery.

In course of trial on the merits Lamar further repeatedly endeavored, in support of his entrapment defense, to elicit evidence as to identity of any informer but was precluded from doing so by trial court's rulings.

Upon completion of the State's case Lamar moved for a dismissal. That motion was overruled.

William Thomas Newton, called as a witness by defendant, was inceptionally informed by trial court, sua sponte, regarding his Fifth Amendment rights. Thereupon defense counsel requested the witness be further advised to the effect such privilege did not extend to or cover transactions between him and police officers. Newton was not so advised. Thereafter trial court consistently upheld Newton's refusal to answer any questions relating to the instant offense, and any contact or association with officers Cleatus Leaming or Lew Rhodes.

At close of all evidence defendant's prior motion to dismiss was renewed and amended. By the amendment Lamar's attorney asserted trial court erred to defendant's prejudice in upholding Newton's right not to answer questions asked of him regarding any police officer related dealings or transactions. The aforesaid motion as amended was also overruled.

Subsequently defendant requested a jury instruction be given regarding entrapment. More specifically the instruction so sought stated, in material part, if it be found intent to commit the crime originated with police officers Or their agents the jury should not return a guilty verdict. Trial court refused this request.

After return of the aforesaid guilty verdict defendant filed specific objections and exceptions to instructions given. Complaint was thereby directed to absence of terminology in instruction 13 to the effect entrapment can be effected by law enforcement officers or by such officers acting through others as their agents.

The foregoing exception was by reference made a part of defendant's separate motion for a new trial. This motion was overruled.

We shall later refer to other instantly involved evidence and procedural matters as they relate to issues presented.

In support of a reversal defendant here urges, trial court erroneously failed (1) to compel the State to disclose identity of its informer or informers; (2) to properly instruct the jury regarding the defense of entrapment.

Defendant also contends nondisclosure served, in effect, to deny him his rights of due process and to be confronted by witnesses against him in violation of U.S.Const. amends 6, 14 and Iowa Const. art. I, §§ 9, 10.

I. An orderly approach to the first issue here raised necessitates a prefatory reference to some pertinent, though perforce general, principles regarding disclosure of an informer's identity.

As instantly applied the so-called informer's privilege is actually the State's right of nondisclosure as to identity of those persons who supply law violation information to officers charged with enforcement of any such law.

This privilege is premised upon public interest in maintaining the flow of information essential to law enforcement.

To be weighed against that interest, however, is an accused's right of access to facts necessary for the preparation and presentation of his defense, and to a fair trial.

Therefore, any determination as to whether an informer's identity is to be revealed requires a balancing of the aforesaid countering interests in light of the facts and circumstances peculiar to each case. Among facts to be considered in this weighing process are (1) nature of the offense charged; (2) defenses raised; and (3) potential significance of an informer's testimony.

The burden is inceptionally upon defendant to show cause for such disclosure. And in this regard the mere assertion of entrapment as a defense to a criminal charge will not suffice.

But when showing is made by an accused that an informer's identity is material to his defense or essential to a fair trial the informer privilege disappears.

In support of the foregoing see Roviaro v. United States, 353 U.S. 53, 59--65, 77 S.Ct. 623, 627--630, 1 L.Ed.2d 639 (1957); United States v. Alvarez, 472 F.2d 111, 113 (9th Cir. 1973); Lannom v. United States, 381 F.2d 858, 861 (9th Cir. 1967), cert. denied, 389 U.S. 1041, 88 S.Ct. 784, 19 L.Ed.2d 833 (1968); State v. Crawford, 202 N.W.2d 99, 102 (Iowa 1972); State v. Battle, 199 N.W.2d 70, 71--72 (Iowa 1972); State v. Denato, 173 N.W.2d 576, 577--579 (Iowa 1970); 8 Wigmore on Evidence, § 2374 (McNaughton Rev. 1961); McCormick on Evidence, § 148 (2d ed. 1972); 21 Am.Jur.2d, Criminal Law, § 332; 58 Am.Jur., Witnesses, § 534; 23 C.J.S. Criminal Law § 954; Annot., 76 A.L.R.2d 262.

Moreover, courts have generally held the identity of an informer must be disclosed when the informant participated in or witnessed the crime charged. See Roviaro v. United States, 353 U.S. at 63--65, 77 S.Ct. at 629--630; State v. Battle, 199 N.W.2d at 71; Bennett v. State, 252 Ark. 128, 477 S.W.2d 497, 499 (1972); Burks v. Commonwealth, 471 S.W.2d 298, 300--301 (Ky.1971); State v. Davis, 450 S.W.2d 168, 172--173 (Mo.1970); State v. Phillips, 27 Ohio St.2d 294, 56 Ohio Op.2d 174, 272 N.E.2d 347, 350--351 (1971); Annot., 76 A.L.R.2d at 286--290.

II. At close of defendant's previously noted pretrial motion hearing trial court held, as aforesaid, the identity of any informer or informers need not be disclosed. Under existing circumstances we find no error in that holding.

Inceptionally Lamar, in course of that proceeding, elicited evidence from testifying officers only to the effect policemen were stationed at the robbery site as the result of advice received from an informant or informants.

Noticeably defendant then presented no evidence from which it could even be inferred he participated in the offense charged because of inducement or the urging of anyone whomsoever.

Neither did Lamar, at that time, show identity of an informer was in any respect material or essential to his defense.

Finally, in this area, there is nothing in the record from which it could be found Lamar was then precluded from making a full and adequate showing of cause for informant identity disclosure.

III. We must also determine whether continued refusal by the court, in course of trial, to require informant identification constituted error.

This mandates a review of the instantly involved factual situation.

Cleatus Leaming, assistant chief of police, Des Moines, a State's witness, testified that about 10:00 a.m., July 9, 1970, an individual appeared at his office. After some preliminary conversation the visitor asked whether Leaming wanted to catch some robbers in the act, to which the latter responded in the affirmative. Thereupon the visitor reported the general locale and time of a planned robbery that same day Thereafter Leaming received at least four phone calls from an informer or informers regarding the above noted robbery. On the last of such calls, about 3:30 p.m., Leaming was told the offense would be committed ten to 20 minutes later. Leaming also stated he had been told, (1) his informer, wearing a bright jacket, would participate in the robbery; (2) Dennis Lamar and Fred Hughes were to assist in committing the crime. Leaming further testified that soon after the robbery officer Rhodes gave an informer some money.

Des Moines detective Lew Rhodes' testimony reveals he was present when the informer visited Leaming as aforesaid. Rhodes knew the informant; was present at the subsequent store stakeout; saw three black males enter the establishment; and soon thereafter observed an individual wearing a bright colored jacket go around the corner but did not pursue him.

Both Leaming and Rhodes denied having had any part in initiating or suggesting the instant robbery to anyone.

Other police officers testified regarding the after robbery flight of a man attired in a bright jacket and the arrest of Lamar and Fred Hughes at the robbery site.

Debbie Newton, defense called witness, identified herself as Billy Newton's wife, then stated Newton, wearing a bright orange jacket, came to her home about 11:00 a.m., July 9, 1970; she was there sleeping with Lamar; Newton asked Lamar to help pull a robbery; Lamar first refused but after Newton got Lamar 'high' on dope the latter agreed to help; and she, Debbie, was the subject of a 'conflict' between Newton and Lamar.

Billy Newton, also a defense called witness, admitted he knew Rhodes but denied knowing Leaming. As aforesaid he consistently refused to answer any informer or robbery related...