State v. Outlaw

• Decision Date: 23 September 1981
• Docket Number: No. 80-1727-CR,80-1727-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. John C. OUTLAW, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 235

311 N.W.2d 235

104 Wis.2d 231

STATE of Wisconsin, Plaintiff-Respondent, v. John C. OUTLAW, Defendant-Appellant.

No. 80-1727-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs April 30, 1981.

Opinion Released Sept. 23, 1981.

Opinion Filed Sept. 23, 1981.

Glenn L. Cushing, Asst. State Public Defender, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and John J. Glinski, Asst. Atty. Gen., for plaintiff-respondent.

Before VOSS, P.J., and BROWN and SCOTT, JJ.

BROWN, Judge.

The issue in this case is whether the prosecution was entitled to withhold information at trial concerning the identity of an informant. It appears reasonably probable from the record that the informant would have been able to give testimony relevant and helpful to the accused. Failure to require the prosecution to disclose the informant's identity in these circumstances is reversible error.

On October 10, 1978 and again on October 19 and 25, a state undercover agent, Gary Martine, successfully purchased cocaine on the campus of the University of Wisconsin Oshkosh. Five months later, a complaint was issued charging John C. Outlaw with three counts of delivery of a controlled substance, contrary to secs. 161.16(4) and 161.41(1)(b), Stats., and party to a crime, contrary to sec. 939.05, Stats.

At the preliminary hearing, agent Martine testified to only four people being present just prior to the first transaction. The four people were Anthony McCalla, Cle Gray, John Outlaw and agent Martine. Martine named McCalla and Gray as accomplices of Outlaw in the sale of cocaine. Martine testified that he first saw the trio in an automobile at a fast-food restaurant parking lot. He testified to meeting the same three individuals a short time later in a dormitory room on the University of Wisconsin Oshkosh campus. A discussion concerning the cocaine sale took place in the dormitory room. Then, according to the testimony, Martine and Outlaw walked to a nearby lavatory where the deal was consummated. At a Wade-Gilbert hearing, ¹ Martine reiterated essentially the same set of facts as were given at the preliminary examination, including that which is most important to the analysis of this case, that only four people were present just prior to the first transaction.

During opening statements at trial, the defense presented its theory of the case; namely, that Outlaw was not present during the transactions and that this was a case of mistaken identity. During direct examination, Martine, for the first time, presented a different account of who was present just prior to the culmination of the initial sale. He stated that there were five people present in the dormitory room rather than four. No followup questions were asked by the prosecutor regarding the identity of the fifth person.

On cross-examination, the defense counsel specifically asked who the fifthe person was. Martine testified that the fifth person was an informant. When asked why he failed to mention the existence of the fifth person during the preliminary hearing and during the Wade-Gilbert hearing, Martine said the failure was not intentional; he merely forgot.

Foundation questions were then asked by the defendant. Martine admitted having observed the fifth person in the car with McCalla, Gray and Outlaw while at the fast-food restaurant. Additionally, Martine admitted that the informant was also in the dormitory room where the discussions preceding the first sale of cocaine were had. Martine further explained that the informant was in a position to see and hear the whole conversation.

The defendant then demanded the identity of the informant, but the prosecutor claimed a privilege not to disclose the identity of the informant pursuant to Rule 905.10, Stats. The trial court implicitly ruled that the state had an absolute privilege not to disclose the informant's identity and reasoned that "the trier of fact is going to have to rely on ... those witnesses that are present and if (the state chooses) to leave out witnesses that could lend more information here, I guess that's their privilege to do so and I'll have to deny the Motion."

The trial court was mistaken. The state has no absolute privilege to withhold the identity of an informant. ² Rule 905.10, Stats., recognizes the use of informants as an important aspect of law enforcement, whether the informant is a citizen who steps forward with information or is a paid undercover agent. ³ In either event, the basic importance of anonymity in the effective use of informers is apparent. ⁴ The rule thus allows the state the privilege of withholding the informant's identity. There are, however, exceptions where the state will not be allowed to assert the privilege. These exceptions are clearly spelled out in Rule 905.10(3)(a), (b) and (c), Stats. ⁵ The exception we are concerned with is found in Rule 905.10(3)(b), Stats., relating to the mechanism for determining when an informant may be able to give testimony allegedly critical to the defendant's case.

The prosecution's privilege to withhold the identity of an informant is qualified by "balancing the public interest in protecting the flow of information against the individual's right to prepare his defense." Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1957). An informant's identity cannot be concealed from the defendant when it is critical to his case. Branzburg v. Hayes, 408 U.S. 665, 698, 92 S.Ct. 2646, 2663, 33 L.Ed.2d 626 (1972). Rule 905.10(3)(b), Stats., provides the procedural framework for deciding a motion to reveal the identity of the informant. Rule 905.10(3)(b) states that if the informant "may be able to give testimony necessary to a fair determination of the issue of guilt or innocence," then the court must conduct an in camera hearing, at which either the testimony or affidavits of the informant is considered. Our immediate task is to interpret how Rule 905.10(3)(b) is to be applied.

The language of Rule 905.10, Stats., was taken directly from the then proposed Federal Rules of Evidence. The Federal Advisory Committee Note refers to Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, as a leading case on the question of disclosure in a criminal prosecution and makes it clear that the rule was meant to embody the analysis that appears in Roviaro. The opinion in Roviaro has been used as a starting point for deciding the question of disclosure of the identity of the informant in a number of Wisconsin cases. See Cummings v. State, 73 Wis.2d 554, 560-61, 243 N.W.2d 499, 501-02 (1976); State v. Midell, 40 Wis.2d 516, 523, 162 N.W.2d 54, 57 (1968), and Stelloh v. Liban, 21 Wis.2d 119, 127, 124 N.W.2d 101, 105 (1963). We thus must look to Roviaro for determining when disclosure is required under Rule 905.10(3)(b), Stats.

Roviaro, like this case, involved a criminal prosecution for a drug transaction. The informant in Roviaro had notified federal and state agents that he was intending to purchase narcotics from the defendant and subsequently made the buy while under police surveillance. The informant was the only person present during the actual exchange of narcotics, although a federal agent was concealed in the trunk of the car in which the exchange took place. In holding that the trial court had erred in refusing to require the government to divulge the name of the informant upon the request of the defense, the Supreme Court stated:

A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.

Roviaro, 353 U.S. at 60-61, 77 S.Ct. at 627-28.

The general standards for determining whether an exception to the privilege should be made are discussed in Roviaro, as follows:

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 upon the particular circumstances of each case ....

Roviaro, 353 U.S. at 62, 77 S.Ct. at 628.

The proposed federal rules, subsequently adopted in Wisconsin as Rule 905.10(3)(b), Stats., formulated the in camera hearing to provide salutary means by which to satisfy the balancing of interests required by Roviaro. United States v. Rawlinson, 487 F.2d 5, 7 n.2 (9th Cir. 1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1579, 39 L.Ed.2d 881 (1974). Thus, Rule 905.10(3)(b) is to be applied as follows. The initial burden is on the defendant to show a necessity of disclosure of identity of the informant. United States v. Alvarez, 469 F.2d 1065, 1066 (9th Cir. 1972). When the defendant, through evidence or other showing, has made it reasonably probable that the informant can give relevant testimony, then the burden shifts to the prosecution to overcome this inference with evidence that the informant cannot supply information material to the defense. United States v. Eddings, 478 F.2d 67, 71 (6th Cir. 1973). In other words, the defendant must show first that the informant's testimony would be relevant. However, the interest of law enforcement in protecting the identity of the informant and continuing the prosecution can still be served if the in camera hearing demonstrates that the informant's identity would not be helpful to the defense. In this way, the public interest in protecting the flow of information is adequately balanced by the individual's right to prepare his defense. Rule 905.10(3)(b), therefore, provides the proper mechanism for determining the balancing that Roviaro mandates must be made.

We conclude, from the evidence, that the informant's testimony would be...