State v. Outlaw

• Citation: 108 Wis.2d 112,321 N.W.2d 145
• Decision Date: 02 July 1982
• Docket Number: No. 80-1727,80-1727
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. John C. OUTLAW, Defendant-Appellant-Respondent. CR.
• Court: United States State Supreme Court of Wisconsin

Page 145

321 N.W.2d 145

108 Wis.2d 112

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

No. 80-1727 CR.

Supreme Court of Wisconsin.

Argued April 28, 1982.

Decided July 2, 1982.

Thomas J. Balistreri, Asst. Atty. Gen., argued, for plaintiff-respondent-petitioner; Bronson C. La Follette, Atty. Gen., on brief.

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

HEFFERNAN, Justice.

This is a review of the court of appeals decision ¹ which reversed the judgment of the circuit court for Winnebago county, WILLIAM H. CARVER, Circuit Judge. The issue in the case concerns the respective obligations of the state and a defendant in circumstances where the informer privilege, sec. 905.10(1), Stats., is invoked by the state and the defendant proceeds under the provisions of sec. 905.10(3)(b). ² More specifically, the state, the petitioner on this review, asserts that the court of appeals erred when it held that, when the in camera procedure authorized by sec. 905.10 is conducted following defendant's initial showing, the state must forego its informer's privilege or submit to a dismissal unless it can show "beyond a reasonable doubt" that the informer's testimony will not be helpful to the defense. We agree that the court of appeals erred when it imposed that burden upon the state, but because we conclude that the trial court abused its discretion in exercising its powers under sec. 905.10(3), we affirm the holding of the court of appeals reversing the conviction and remanding to the circuit court.

The underlying material facts reveal that on March 22, 1979, a criminal complaint was issued charging the defendant, John C. Outlaw, with three counts of delivery of cocaine five months earlier to a state undercover agent, Gary Martine, contrary to sec. 161.16(4), Stats. The offenses allegedly took place on October 10, 19, and 25, 1978, on the campus of the University of Wisconsin-Oshkosh.

With respect to the October 10 transaction, the complaint stated that three people--Outlaw, Anthony L. McCalla, and Agent Martine--were present in the dormitory room where the drug transaction was discussed. Outlaw and Martine left the room, further discussed the transaction in the men's washroom, and completed the transaction in the hall just outside that room.

At the preliminary hearing held on October 16, 1979, Agent Martine testified that there were four people present in the dormitory room just prior to the October 10 transaction--himself, Outlaw, McCalla, and Cle Gray. He testified that he met the three in the parking lot of a fast-food restaurant and a short time later met them at the dormitory. He said that he had known both McCalla and Gray prior to this meeting but that he had never before met the defendant, who he later said was Outlaw. At a Wade-Gilbert hearing on March 7, 1980, Martine again testified that four people were present in the dormitory room just before the transaction.

Trial to a jury was held on March 17 and 18, 1980; and, during the direct examination of Agent Martine regarding the October 10 transaction, he testified that five people were present in the dormitory room just prior to the transaction. He further testified that, shortly after he left the dormitory on that date and entered his car, the defendant came from the dormitory, walked over to his car, and handed him another packet of cocaine, explaining that he had thought the previous packet he had given him had contained two grams when it contained only one.

On cross-examination Martine admitted that he had failed previously to mention the presence of the fifth person but testified that, other than in the complaint, this failure was unintentional. Defense counsel established that the fifth person was an informer who had accompanied Agent Martine to the restaurant and then to the dormitory. Martine further said that the informer was present in the dormitory room during the discussion of the transaction and was in a position to hear the entire conversation in that room and to see what was going on.

Finally, Agent Martine said that the informer was present in Martine's car when the second packet of cocaine and the explanation for its delivery were given to Martine.

During the cross-examination, defense counsel specifically asked the name of the informer, but the state objected, claiming a law enforcement privilege pursuant to sec. 905.10(1), Stats., Identity of informer. The trial court sustained the objection.

At the close of Agent Martine's testimony, defense counsel, relying on sec. 905.10(3)(b), Stats., moved to dismiss the count relating to the October 10 transaction or, in the alternative, to require disclosure of the informer's identity. The state opposed the motion, arguing that the right to seek such relief had been waived because defense counsel had known prior to trial that a fifth person was present. Defense counsel admitted that, one week prior to the trial, he had received a report stating there was another person ³ present, but counsel argued that he had expected the state to call all relevant witnesses and had only found out the morning of trial that an informer would not be called. The court denied the motion, stating that:

"[T]he statute here put into the law by the legislature has provided this apparent protection of not disclosing the informer ... and if they choose to leave out witnesses that could lend more information here, I guess that's their privilege ...."

At the close of the state's case, defense counsel renewed his motion to require disclosure or to dismiss Count 1, and again the trial court denied the motion.

The defense then called Anthony McCalla and Cle Gray to testify, but both refused, claiming their fifth amendment privilege. With respect to McCalla, because it was ultimately determined that he could not claim the privilege of the fifth amendment, he was ordered by the court to testify; but he still refused, despite being held in contempt by the court. Gray's invocation of the fifth amendment privilege was upheld. The state refused to consent to a grant of immunity for either McCalla or Gray as requested by defense counsel. Hence, only the state's agent, Martine, and the defendant, by waiving his right not to testify, were able to testify in respect to the alleged transaction of October 10.

The defendant took the stand and testified that he was not the person involved in any of the transactions. His two sisters also testified, disputing Agent Martine's description of Outlaw's hair as being "straight" during the period of time in question. They testified that at the time his hair style was "Afro." Outlaw's defense was alibi and mistaken identity.

At the close of the evidence, defense counsel reiterated his motion to dismiss Count 1, because of the state's refusal to disclose the informer's identity. The state again argued that the motion was untimely, and the trial court again denied the motion.

The jury found Outlaw guilty of all three counts. He appealed, arguing to the Court of Appeals that the informer's privilege found in sec. 905.10, Stats., was not so absolute as the trial court had construed it and asserting that the trial court, given the facts and circumstances of this case, had erred in refusing to require the disclosure of the informer's identity. He argued that all three counts should be dismissed if the state persisted in its refusal to disclose. He reasoned that the defendant's identity was in issue as to all three counts and that, if the informer's testimony discredited Agent Martine's identification as to the first count, then Martine's entire testimony would be suspect.

The court of appeals, in reliance on Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), on the initial submission of the appeal, construed sec. 905.10, Stats., to require disclosure only if the informer's testimony was found to be relevant and helpful to the defense. It concluded from the record that the informer was a transactional witness whose testimony might be relevant to all three counts; but without knowledge of the substance of that testimony, the court of appeals could not conclude that the informer's testimony would be helpful. Consequently, it retained jurisdiction of the case but remanded to the trial court for the hearing contemplated by sec. 905.10(3)(b).

The court of appeals instructed the state to supply affidavits to the trial court or, if the trial court directed a hearing in camera, to produce testimony to determine whether the informer's testimony might be relevant and helpful to the defense. The affidavits or testimony were ordered to be sealed and returned to the court of appeals, along with the trial court's finding whether or not there was a reasonable probability that the informer could give testimony helpful to the defense. The finding of the trial court was directed not to be sealed, and copies were to be sent to the parties.

The circuit court on remand allowed the state the opportunity to produce its informer in an in camera hearing. Following that hearing, the trial judge made findings and concluded from the in camera testimony that the informer's "testimony at trial would, with reasonable probability, not be helpful to the Defense." The trial judge further concluded that the informer's testimony would corroborate other evidence that an unlawful drug transaction had taken place and stated that:

"Although [the informer] could not have identified John Outlaw, the issue of identity was so convincingly presented by Agent Martine that [the informer's] testimony would not, when reviewed in total, be helpful to the defendant." (Emphasis supplied.)

Upon submission of the return to the court of appeals, that court disagreed with the conclusions of the trial court, stating that the trial court had employed a much too limited view of the circumstances in which fundamental fairness...