State v. Oliver

• Decision Date: 20 July 1967
• Docket Number: No. A--161,A--161
• Citation: 50 N.J. 39,231 A.2d 805
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Chester OLIVER, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 39

50 N.J. 39

231 A.2d 805

STATE of New Jersey, Plaintiff-Appellant, v. Chester OLIVER, Defendant-Respondent.

No. A--161.

Supreme Court of New Jersey.

Argued June 7, 1967.

Decided July 20, 1967.

Richard S. Cohen, Asst. County Prosecutor, for appellant (Edward J. Dolan, Middlesex County Prosecutor, attorney).

Morris Spritzer, New Brunswick, for respondent (Spritzer & Spritzer, New Brunswick, attorneys).

Joseph A. Hoffman, Asst. Atty. Gen., for Attorney General, amicus curiae (Arthur J. Sills, Atty. Gen.).

Brendan T. Byrne, Essex County Prosecutor, submitted a brief amicus curiae (Barry H. Evenchick, Asst. County Prosecutor, of counsel and on the brief).

Leo Kaplowitz, Union County Prosecutor, submitted a brief amicus curiae (Anthony Luongo, Asst. County Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

WEINTRAUB, C.J.

Defendant Oliver was convicted of bookmaking in violation of N.J.S. 2A:112--3, N.J.S.A. The Appellate Division reversed because the trial court refused to order the State to disclose the identity of an informer. State v. Oliver, 92 N.J.Super. 228, 222 A.2d 761 (App.Div.1966). We granted certification, 48 N.J. 143, 224 A.2d 327 (1966). The case was argued with State v. Bacsko, 50 N.J. 49, 231 A.2d 811 (1967), and State v. Krempecki, 50 N.J. 50, 231 A.2d 811 (1967), both decided today, which involve the same issue. In Bacsko, another part of the Appellate Division, in an unreported opinion, upheld the refusal to order disclosure. Krempecki, in which the trial court also refused to order disclosure, was not considered by the Appellate Division because we certified it before argument there.

Oliver was charged with making book between April 13 and May 27, 1964. The principal witness for the State was Trooper Walter T. Decker of the State Police, an undercover agent with its Gambling Squad. He testified to bookmaking activities by Oliver at a tavern in New Brunswick, owned by one Del Bono, on three dates prior to the day of a raid under a search warrant.

The State made no reference to an informer but the defense, on cross-examination of Decker, elicited the fact that on all three occasions prior to the day of the raid an informer was seated with him at the bar. The informer did not place a bet. Nor did Decker. We gather the informer accompanied Decker only because the informer was a familiar figure at the bar and hence his presence tended to shield Decker from the suspicion he might have generated as a stranger. The informer was not there to be a witness but rather to make Decker less conspicuous. The Appellate Division said that Decker testified 'that upon comparing his observations with those of the informer they were in some respects not in accord' (92 N.J.Super. at 240, 222 A.2d at 768). We do not read his testimony to be that there was a conflict upon anything, but rather that since the informer did not concentrate upon evidence of bookmaking, he did not see or hear some of the things Decker noted. There is nothing to suggest the informer would have contradicted any material testimony of Decker.

Defendant first contends the unnamed man was beyond the common-law informer privilege and its codification in N.J.S.A. 2A:84A--28, ¹ see State v. Burnett, 42 N.J. 377 380, 201 A.2d 39 (1964), because he acted for pecuniary reward and was paid not merely for what he knew but also to seek out violations in places accessible to him. The Appellate Division correctly held that neither fact took him beyond the privilege.

The privilege exists to secure a flow of vital information which can be had only upon a confidential basis. Not all such information comes from people of high motivation. The police must have the aid of men of lesser quality who respond to selfish inducements, including money. These men are needed for what they know, but also for what they can learn because of their associations. This is especially true with respect to crimes of a consensual nature as to which there is little likelihood that a victim will complain. See Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312, 316, n. 6 (1966), and McCray v. State of Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, 71 (1967). The informer, paid or not, is subject to risks of retaliation which a regular member of a police force need not fear and hence, whether paid or not, he comes within the protection of the privilege.

But we think the Appellate Division erred in holding that the State must disclose the identity of the informer. Here the informer played no part whatever in the criminal event. He did not bet, or induce defendant to accept a bet from anyone. Nor did the State attempt to get into the record of the trial anything the informer may have seen or said. It was the defense that brought out his presence at the scene, obviously to raise the immediate issue. But the defense was unable to show that the informer's testimony was necessary for a fair determination of the issues in the case. The defense could advance nothing more than an ungrounded hope that if the informer were called as a defense witness, he would say something which would somehow discredit the trooper and lead to an acquittal. We are not referred to any case which calls for a disclosure of a nonparticipant informer upon that rootless speculation.

In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the informer was a principal actor in the offense. He was the immediate party to the sale of the narcotics, and for a portion of the time he and the defendant were alone. Further the informer denied that he had ever seen the defendant when he was confronted with him. The Court did not say an informer must be revealed merely because he knows something about the criminal event. Rather the opinion reads (353 U.S. at 62, 77 S.Ct. at 628, 1 L.Ed.2d at 646):

'We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. 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.'

In holding that there the identity of the informer had to be revealed upon that balance, the Court stressed the prominence of the informer's role, the fact that his conversation with defendant was used by the prosecution, the nature of the defenses the circumstances affirmatively suggested might be available, and finally the testimony that the informer denied knowing defendant upon confrontation. ²

In Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964), defendant was convicted of knowingly receiving stolen fur pieces after their transportation in interstate commerce. The furs were found in the basement of his home. Defendant denied knowledge, and apparently suggested his brother, an admitted 'fence' for stolen goods, who had a key to the house, might have placed the furs there while defendant was out of the State. The affidavit used in obtaining the search warrant said the informer claimed to have been in the basement and to have seen the furs. Conceivably he could have shed light on how the furs got there, and whether with defendant's knowledge. The majority rejected the claim that the informer should have been disclosed for the purpose of the trial, finding the request for disclosure related only to the motion to suppress the evidence seized under the search warrant. Nonetheless the majority opinion commented upon the claim and concluded that the defendant had not met his burden to establish the criteria of Roviaro, saying, 376 U.S. at 534--535, 84 S.Ct. at 829, 11 L.Ed.2d at 892--893:

'He relied entirely on suppression, which, if successful, would have ended the case. Failing in this, petitioner asserted, for the first time, in his reply brief in the Court of Appeals that the name of the single informant who saw the furs was vital both for the suppression hearing and for the defense at trial, because the informant alone knew whether he 'participated with persons other than the defendant' in placing the furs in the basement. Apparently this was an attempt to bring the facts of the case within Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), where the informant had played a direct and prominent part, as the sole participant with the accused, in the very offense for which the latter was convicted. But there was not even an intimation of such a situation at the trial here. The necessity for disclosure depends upon '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.' 353 U.S. 53, 62, 77 S.Ct. 623, 629, 1 L.Ed.2d 639 (646). Petitioner did not develop any such criteria with reference to the merits of the case.'

McCray v. State of Illinois, supra, 386 U.S. 300, 87 S.Ct. 1056, 1061, 18 L.Ed.2d 62, 70, involved the refusal to disclose the informer's identity on a motion to suppress things seized on a search, but the Court discussed Roviaro and emphasized the special facts which there led to the holding that the informer should be revealed for the purposes of the trial:

'The Roviaro case involved the informer's privilege, not at a preliminary hearing to determine probable cause for an arrest or search, but at the trial itself where the issue was the fundamental one of innocence or guilt. The petitioner there had been brought to trial upon a tow-count federal indictment charging sale and transportation of narcotics. According to the prosecution's evidence, the informer had been an active participant in the crime. He 'had taken a material part in bringing...