State v. Richardson

• Decision Date: 04 August 1987
• Docket Number: No. 12939,12939
• Citation: 529 A.2d 1236,204 Conn. 654
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Robert E. RICHARDSON.

Page 1236

529 A.2d 1236

204 Conn. 654

STATE of Connecticut v. Robert E. RICHARDSON.

No. 12939.

Supreme Court of Connecticut.

Argued May 12, 1987.

Decided Aug. 4, 1987.

Louis S. Avitabile, Sp. Public Defender, and Denise Dishongh, with whom, on brief, was Joshua R. Kricker, Waterbury, for appellant (defendant).

John H. Gorman, Sp. Asst. State's Atty., with whom were Peter D. Markle, Asst. State's Atty., and, on brief, John A. Connelly, State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CRETELLA and ARONSON, JJ.

SHEA, Associate Justice.

A jury found the defendant guilty of illegal possession of narcotics in violation of General Statutes § 21a-279(a). ¹ In this appeal from the judgment rendered in accordance with the verdict, the defendant claims that the trial court erred: (1) in denying the defendant's motion to disclose the informant's identity, and in failing to hold at least an in camera hearing on his identity so the defendant could use the information to challenge the probable cause or articulable suspicion claimed to justify the stop and search; (2) in not allowing the informant's identity to be disclosed despite the defendant's contention that the informant was a witness to the continuing crime of possession of narcotics; (3) in denying the defendant's motion for disclosure of the informant's identity even after the state had introduced evidence before the jury that there had been a complaint about the defendant, and that on the basis of that complaint the detectives had initiated an investigation concerning narcotics; and (4) in failing to allow the defendant to discover whether the informant was one of four people who had had access on the day of the crime to the car in which the defendant was arrested for possession of narcotics. We find no error.

From the evidence presented at the hearing on the defendant's pretrial motions, the court could reasonably have found the following facts. An informant saw the defendant sell a quantity of narcotics in the north end of Waterbury on May 30, 1985. Twenty minutes later the informant conveyed this information to Detectives William Howard Jones and Domingo Pietri. He also told them that the defendant had a large quantity of narcotics on his person, that he was driving a small blue vehicle bearing a specified registration number, and that he was heading to the Walnut Street area. The informant indicated that his information was based on personal observation. The detectives had known the informant for four years, and were aware that his information in the past had resulted in six arrests and convictions. Jones testified that he had known the defendant personally as a result of previous narcotics investigations and arrests.

At the trial before the jury evidence was presented of the following facts. After receiving a complaint concerning the defendant, the two officers, in an unmarked car, drove to the north end of Waterbury and observed the defendant driving a car matching the vehicle described by the informant. They began following the defendant's car. They saw the car weave back and forth, and strike the curb of the sidewalk at least twice. The two officers also observed the defendant making fidgeting movements while he was driving in an erratic manner. After they had stopped the defendant's car, Pietri approached the car and saw the defendant take a plastic bag out of his right pants pocket and place it underneath the dashboard. The two detectives then arrested the defendant. The plastic bag removed from underneath the dashboard during the search of the vehicle was found to contain narcotics.

I

The defendant first claims that the trial court erred by denying his motion for disclosure of the informant's identity. According to the defendant, this disclosure was essential to allow him to challenge the probable cause or articulable suspicion relied upon by the police for the stop and search. In the alternative, the defendant argues that a judge must at least hold an in camera hearing to verify the existence of the informant and the credibility of his information. We reject both of these contentions.

The United States Supreme Court's decision in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), provides a starting point for our analysis of how courts should balance the state's interest in protecting informants against the defendant's interest in obtaining information useful in conducting his defense. Courts have recognized an informant's privilege. "What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.... The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation." (Citations omitted.) Id., 59, 77 S.Ct. at 627.

While an informant's or government's privilege exists, it must yield where it would interfere with a defendant's right to a fair trial. "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." Id., 60-61, 77 S.Ct. at 628.

Two factors must be kept in mind in evaluating the significance of Roviaro for the claim under consideration. First, in Roviaro, the informant was a participant in the crime charged, and his testimony was sought at the trial itself rather than at a suppression hearing. Second, Roviaro involved the application of federal evidentiary rules, and the decision did not rest on constitutional grounds. State v. Harris, 159 Conn. 521, 527, 271 A.2d 74 (1970), cert. dismissed, 400 U.S. 1019, 91 S.Ct. 578, 27 L.Ed.2d 630 (1971).

Roviaro did not address the problem of whether courts should disclose the identity of informants who supply information to the police that ultimately results in an arrest, but who are not participants in the crime charged. The Roviaro decision, however, does offer an intellectual framework for analyzing such an issue. It suggests that the question of disclosure should be determined on a case by case basis, and advocates the use of a balancing test. "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, and possible significance of the informer's testimony, and other relevant factors." Roviaro v. United States, supra, 353 U.S. at 62, 77 S.Ct. at 628-29.

A

The claim that a defendant is entitled to the disclosure of the identity of an informant to enable him to challenge the basis for probable cause relied upon by the police in making an arrest or search has been rejected by the United States Supreme Court in McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, reh. denied, 386 U.S. 1042, 87 S.Ct. 1474, 18 L.Ed.2d 616 (1967). In that case the court made a sharp distinction between informants who are participants in the crime itself and whose testimony is vital at the trial in determining guilt or innocence, and those informants who merely supply information useful in establishing probable cause for an arrest or search. "What Roviaro thus makes clear is that this Court was unwilling to impose any absolute rule requiring disclosure of an informer's identity even in formulating evidentiary rules for federal criminal trials. Much less has the Court ever approached the formulation of a federal evidentiary rule of compulsory disclosure where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake." Id., 311, 87 S.Ct. at 1062; State v. Conger, 183 Conn. 386, 392-93, 439 A.2d 381 (1981); State v. West, 178 Conn. 444, 445-46, 423 A.2d 117 (1979); State v. McDaniel, 176 Conn. 131, 133-34, 405 A.2d 68 (1978); State v. Harris, supra, 159 Conn. at 525-30, 271 A.2d 74; State v. Hall, 28 Conn.Sup. 331, 334-35, 260 A.2d 411 (1969).

In State v. Harris, supra, this court followed McCray in determining that the identity of an informant could be withheld where he was not a participant in the crime with which the defendant was charged and his testimony was not essential to assure a fair determination of guilt or innocence at the trial itself. "In the present case, in contrast to the Roviaro case, there is no suggestion that the informer was a participant in the crime with which the defendant was charged. Instead, the defendant indulges in surmises as to what information might be gleaned from an examination of the informer." State v. Harris, supra, 159 Conn. at 529, 271 A.2d 74; State v. Conger, supra; State v. West, supra; State v. McDaniel, supra; State v. Hall, supra.

There are important reasons for treating a motion to disclose an informant's identity differently at a suppression hearing than at a trial. " 'We must remember also that we are not dealing with the trial of the criminal charge itself. There the need for a truthful verdict outweighs society's need for the informer privilege. Here, however, the accused seeks to avoid the truth. The very purpose of a motion to suppress is to escape the inculpatory thrust of evidence in hand, not because its probative force is diluted in the least by the mode of seizure, but rather as a sanction to compel enforcement officers to respect the constitutional security of all of us under the Fourth...