State v. Phillips, 70-407

Citation56 O.O.2d 174,272 N.E.2d 347,27 Ohio St.2d 294
Decision Date21 July 1971
Docket NumberNo. 70-407,70-407
Parties, 56 O.O.2d 174 The STATE of Ohio, Appellee, v. PHILLIPS, Appellant.
CourtUnited States State Supreme Court of Ohio

Syllabus by the Court

Where an informer, acting on behalf of the police, purchases narcotics with marked money, some of which is later found in the possession of an accused, and the informer does not present the narcotics purchased to police, and there is no evidence that appellant was present at the time of sale, and the testimony of the informer is relevant, potentially helpful, and beneficial to the accused in making a defense to, or is essential to a fair trial on, a charge of possession of narcotics for sale in violation of R.C. § 3719.20(A), the privilege to withhold the disclosure of the informer's identity is inapplicable and the identity of the informer must be disclosed or the defendant discharged as to such charge.

Sometime before October 4, 1967, pursuant to information received from an informer that a man named 'Reno' or 'Michigan Man,' and one Charles 'Little Bill' Evans were involved in selling narcotics at the Stewarty Motel on Germantown Pike, in Montgomery County, outside the corporate limits of the city of Dayton, the Dayton police began an investigation.

The services of an informer, who was a known narcotics addict, were enlisted. The informer was a person who had been arrested and was waiting disposition of his case. However, Sergeant Spencer of the Dayton police stated that the informer was promised no assistance in the other matter in return for his services as an informer.

On the afternoon of October 4, 1967, the informer was furnished twenty dollars in marked money, and the police officers and the informer proceeded to a meeting spot west of the Stewarty Motel. The informer left the rendezvous point and drove to the motel. When the informer returned, he did not bring any narcotics, but he did return five dollars of the twenty dollars marked money.

Detective Walley, testifying on cross-examination, stated that that afternoon the informer went into the motel and made a 'buy,' but for some reason was required 'to shoot the narcotic up in the room with a co-defendant in this case, William Evans and several other subjects.'

Later that night, at about 9:00 p. m., after being furnished with more marked money, the informer again drove to the motel for the purpose of purchasing narcotics. A number of police officers took positions for surveillance outside the motel so that they could see down a hallway. The police officers observed the informer entering room 111, from which a man identified as Evans later emerged. They observed Evans going to rooms 110 and 110A, returning to room 111 a short time later. The informer then returned to the police officers with a capsule purchased inside. Sergeant Spencer testified at the hearing on the motion to suppress certain evidence that this purchase was made from one Patty Amos. A field test was performed on the capsule, from which a determination was made that the substance was an opium derivative.

After the field test, and without first obtaining either arrest or search warrants, the police then entered the motel, and upon entering, observed Evans coming out of room 106. Evans, seeing the police, threw certain objects that he was carrying back into room 106. These objects, which were paraphenalia used in taking narcotics, were recovered by police and were admitted in evidence at trial.

After arresting Evans, the police took him to room 110. Hearing another person in room 110, they broke down the door. Patty Amos was found in 110, and both that room and 110A were searched by the police. The search uncovered 56 capsules of heroin which had been concealed under a mattress.

Clothing and personal papers identified as belonging to Louis Phillips, appellant herein, were also found in 110 and 110A.

About 12:30 a. m. on October 5, 1967, appellant, Louis Phillips, arrived at the motel and was arrested as he was entering room 106, and then taken to room 110. At that time, room 110A was again searched. This search enabled the officers to find 'a quantity of white powder, white crystals, some dolophine tablets and other narcotic cutting instruments-screens and spoons, sifting and measuring devices, capsules and so forth * * *.' Phillips had in his possession five dollars of the money marked by the police, which they had given to the informer the afternoon of October 4. At no time were narcotics found on the person of or in the automobile belonging to Phillips.

Appellant was charged by indictment with the unlawful possession of narcotics, the unlawful possession of narcotics for sale, and conspiracy to possess narcotics. Pleading not guilty, appellant was tried, together with Patty Amos, before a jury on February 20, 1968. Before trial, appellant moved to require the state to disclose the identity of the informer, to suppress evidence seized by the warrantless search of the motel room, to dismiss the case against codefendant Patty Amos for lack of jurisdiction in that she was under the age of 18, and for a dismissal of the charges against Phillips. Those motions were overruled. At the trial, defense counsel was again unsuccessful in his attempt to compel the state to reveal the identity of the informer. During trial, defense counsel moved that the case against Patty Amos be dismissed offering a Michigan birth certificate as proof of her age of 17. The motion was overruled, but was granted at the close of the state's case, and her case was dismissed.

Appellant was convicted on all three counts of the indictment. Upon appeal, the Court of Appeals reversed as to the first count (unlawful possession of narcotics), holding that it was a lesser included offense in the offense of possession for sale. The state did not take exception to this by cross-appeal. The convictions on the remaining two counts were affirmed. The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Lee C. Falke, Pros. Atty., James T. Burroughs and Paul R. Leonard, Dayton, for appellee.

Rion, Rion & Rion, and Paul W. Rion, Dayton, for appellant.

DUNCAN, Justice.

In the Court of Appeals, the appellant raised this assignment of error: 'The court sustained the state's objection to questions put to the state's witnesses on cross-examination as to the identity of their informer.' The Court of Appeals held that the facts of this case do not require such a disclosure. We reverse.

In our decision in State v. Roe (1971), 26 Ohio St.2d 243, 271 N.E.2d 276, Justice Corrigan discussed the value of, and the reasons for the legal genesis of the qualified privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. Scher v. United States (1938), 305 U.S. 251, 254, 59 S.Ct. 174, 83 L.Ed. 151; In re Quarles (1894), 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080; Vogel v. Gruaz (1884), 110 U.S. 311, 318, 4 S.Ct. 12, 28 L.Ed. 158.

Roviaro v. United States (1957), 353 U.S. 53, 60, 77 S.Ct. 623, 1 L.Ed.2d 639, cited in our recent decision in State v. Roe, supra, well communicates the delicate balancing of our societal interest in the apprehension of criminals with the fundamental fairness that must be extended to those charged with crimes. That balance is so fine that a determination must come only after a thorough analysis of the facts of each case. Appreciating the fact that the holding in Roviaro was a reversal of a conviction under a federal statute, rather than a constitutional decision dictating the course of state law, and therefore not binding on this court, the grasp of the problem and the legal solution in Roviaro are persuasive.

This court has pronounced a similar rule. It has been held that the state has the privilege to withhold the identity of an informer, unless the disclosure would be helpful and beneficial to the accused in making a defense to a criminal charge lodged against him. State v. Beck (1963), 175 Ohio St. 73, 191 N.E.2d 825, reversed on other grounds, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142. Language somewhat similar is used in Roviaro, supra, where it is stated, 353 U.S. at page 60, 77 S.Ct. at page 628: 'Where the disclosure of an informer's identity * * * 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.'

It is interesting to note the standards used in Roviaro when evaluating the need for disclosure of an informer's identity as a defensive necessity. At page 62, 77 S.Ct. at page 629 therein the opinion states:

'Whether a proper balance renders non-disclosure 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.'

Further at page 63, 77 S.Ct. at page 629, in discussing the import of the informer's potential value to the trial, the court said, 'The circumstances of this case demonstrate that John Doe's possible testimony was highly relevant and might have been helpful to the defense.'

In the case at bar, after the decision of the Court of Appeals, Phillips remains convicted of the unlawful possession of narcotics for sale, and conspiring to possess narcotics.

Two of the steps in the ladder of circumstances which can reasonably be said to provide the jury with the inference that appellant was in possession of narcotics for sale is the evidence of the two 'buys' of narcotics by the informer. There is no specific evidence identifying any person from whom the informer purchased drugs on the afternoon of October 4, 1967. Pertaining to the afternoon sale, the trier of the facts knew only that the informer entered the motel, returned to the police officers, stated that he had been required to 'shoot' the narcotics in the motel, and...

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