State v. Salley

• Decision Date: 26 April 1993
• Citation: 264 N.J.Super. 91,624 A.2d 42
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Darryl Jerome SALLEY, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 91

264 N.J.Super. 91

624 A.2d 42

STATE of New Jersey, Plaintiff-Appellant, v. Darryl Jerome SALLEY, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Submitted March 23, 1993.

Decided April 26, 1993.

Clifford J. Minor, Essex County Prosecutor, for appellant (Virginia M. Lincoln, Assistant Prosecutor, of counsel and on the letter-brief).

Dell'Italia, Affinito, Jerejian & Santola, for respondent (Robert S. Miseo, of counsel and on the letter-brief).

Before Judges MICHELS, BILDER and BAIME.

The opinion of the court was delivered by

BAIME, J.A.D.

The State appeals from the Law Division's order dismissing an indictment which charged defendant with possession of a sawed-off shotgun ( N.J.S.A. 2C:39-3b) and possession of cocaine ( N.J.S.A. 2C:35-10a(1)). The indictment was dismissed because the State refused to comply with an order requiring the police to disclose the identity of a confidential informant. The State contends that the anonymity of the informant should be preserved to avoid the risk of retaliation. We agree and reverse the Law Division's order.

I.

Unfortunately, our review of this case has been hampered by the truncated nature of the record submitted to us. The gist of the State's charges was that a confidential informant, under a prearranged plan with the police, lured defendant from his apartment by feigning interest in purchasing a shotgun which allegedly had been used in a series of robberies. According to the State's version, while engaged in their surveillance, the police observed three males conversing outside of defendant's building: the informant, defendant, and a third person later identified as Jay Smith. Defendant allegedly entered the building and returned shortly thereafter, brandishing a black sawed-off shotgun. The police arrested all three individuals and placed them in a patrol car. An unrelated arrest of another individual was then made and all of the suspects were transported to the tactical squad room at police headquarters. After a brief period, Smith and the informant were set free.

Defendant's version of the incident was markedly different. He claimed that the police raided the apartment and arrested him only when he refused to disclose the whereabouts of his brother. According to the defense's account, no conversation took place outside the building and defendant never had possession of the shotgun. In essence, defendant claimed that there was no informant and the arresting officers' description of the incident constituted pure fabrication. To support his claim, defendant was prepared to present Smith and other residents of the apartment building as witnesses.

We gather from the record that the prosecutor and defense counsel entered into an agreement not to mention the informant's role in luring defendant from the apartment building. The trial commenced on that basis. Following opening statements, the State presented its first witness, the police officer who had allegedly planned the arrest with the informant. The officer testified that he and several detectives embarked upon a surveillance of the building based "upon certain information he had received." See State v. Bankston, 63 N.J. 263, 268, 307 A.2d 65 (1973). According to the officer, from the vantage point of his unmarked patrol car, he observed three males standing adjacent to the entrance of the apartment building. At this point, the trial was interrupted because the defense attorney was required in another court.

When the trial resumed, the prosecutor complained to the judge that defense counsel, in his opening statement, had breached the agreement not to allude to the informant. We have not been presented with a transcript of the opening statement and the colloquy concerning defense counsel's allegedly wayward remarks is extremely obscure. The point is unimportant except that it prompted the Law Division judge to suggest sua sponte that defendant was entitled to disclosure of the identity of the informant. On his own motion, the trial judge conducted an Evid.R. 8 hearing, eliciting testimony from the arresting officer that he knew the informant only by his first name, that he had received information from him on at least five prior occasions and that he generally paid him for the "tips" he revealed. Following the hearing, the judge granted a mistrial and ordered the prosecutor to disclose the name, address and social security number of the informant.

Based upon the request of the prosecutor, another Evid.R. 8 hearing was later conducted. The arresting officer provided additional testimony relating to his relationship with the informant and the danger of retaliation if his identity were to be divulged. Defense counsel merely reiterated the factual contention that the police raided the apartment building and retrieved the shotgun from an undisclosed place. The attorney reaffirmed his intention to call Smith, who he represented was available to testify, and other residents of the building to corroborate defendant's version of the incident.

Following the hearing, the Law Division judge again directed the prosecutor to provide the defense with the name, address, and social security number of the informant. In reaching this result, the judge expressed doubt that an informant actually existed. The judge also observed that, under the State's version, the informant was a key participant in the criminal event and, in any case, was probably known by the defendant. The indictment was dismissed when the State refused to comply with the court's order. This appeal followed.

II.

We hold that the trial court mistakenly exercised its discretion by compelling the State to disclose the identity of the informant. The informant's privilege had its genesis in the common law, see 2 Underhill, Criminal Evidence § 327 (5th ed. 1956); Donnelly, "Judicial Control of Informants, Spies, Stool Pigeons and Agents Provocateurs," 60 Yale L.J., 1091 (1951), and is now codified in N.J.S.A. 2A:84A-28 and Evid.R. 36 which provide:

A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.

The privilege has been applied in both criminal and civil cases and in a variety of factual and legal settings. See, e.g., Grodjesk v. Faghani, 104 N.J. 89, 514 A.2d 1328 (1986); Cashen v. Spann, 77 N.J. 138, 389 A.2d 969 (1978); State v. Oliver, 50 N.J. 39, 231 A.2d 805 (1967); State v. Burnett, 42 N.J. 377, 201 A.2d 39 (1964); State v. Dolce, 41 N.J. 422, 197 A.2d 185 (1964); Morss v. Forbes, 24 N.J. 341, 132 A.2d 1 (1957); State v. Foreshaw, 245 N.J.Super. 166, 584 A.2d 832 (App.Div.), certif. denied, 126 N.J. 327, 598 A.2d 886 (1991); State v. Varona, 242 N.J.Super. 474, 577 A.2d 524 (App.Div.), certif. denied, 122 N.J. 386, 585 A.2d 389 (1990); State v. Siebold, 138 N.J.Super. 87, 350 A.2d 265 (App.Div.1975); State v. Infante, 116 N.J.Super. 252, 282 A.2d 44 (App.Div.1971); cf. State v. Garcia, 131 N.J. 67, 618 A.2d 326 (1993); State v. Zenquis, 131 N.J. 84, 618 A.2d 335 (1993).

The privilege rests upon the need to encourage cooperation between the citizenry and the police, State v. Milligan, 71 N.J. 373, 381, 365 A.2d 914 (1976), and to secure a flow of vital information which can be given only upon a confidential basis, State v. Oliver, 50 N.J. at 42, 231 A.2d 805. 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 responsibility. Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639, 644 (1957). Not all such information comes from people of high motivation. State v. Oliver, 50 N.J. at 42, 231 A.2d 805. The police must have the aid of people of lesser quality who respond to selfish inducements. Ibid. Much of the critical information comes from members of the criminal milieu. These people are needed for what they know, as well as for what they can learn because of their associations. Ibid. Whether an informer is motivated by good citizenship, promise of leniency or prospect of pecuniary reward, "he will usually condition his cooperation on an assurance of anonymity." State v. Milligan, 71 N.J at 382, 365 A.2d 914 (quoting 8 Wigmore, Evidence § 2374 (McNaughton rev. 1961)). The informer, whether good or evil and whether paid or not, is subject to the risk of retaliation which a regular member of the police force ordinarily need not fear. State v. Oliver, 50 N.J. at 42, 231 A.2d 805. Our Supreme Court has aptly observed that "[t]he fears and concerns which have prompted the need to assure anonymity of informers rest on solid factual grounds." State v. Milligan, 71 N.J. at 382 n. 4, 365 A.2d 914. Common experience indicates that the informant's privilege "is well established, and its soundness cannot be questioned." 8 Wigmore, Evidence § 2374, at 762.

Of course, the privilege must be anchored to the reason for its existence and must yield when countervailing policies so dictate. The privilege is inapplicable where disclosure would be "relevant and helpful to the defense of an accused" or "essential to a fair determination" of a criminal or civil case. Roviaro v. United States, 353 U.S. at 60-61, 77 S.Ct. at 627-28, 1 L.Ed.2d at 645; see also State v. Florez, 261 N.J.Super. 12, 617 A.2d 670 (App.Div.1992); State v. Postorino, 253 N.J.Super. 98, 601 A.2d 223 (App.Div.1991); State v. Roundtree, 118 N.J.Super....