State v. Sproul, WD

• Decision Date: 20 March 1990
• Docket Number: No. WD,WD
• Citation: 786 S.W.2d 169
• Parties: STATE of Missouri, Respondent, v. Lisa SPROUL, Appellant. 41460.
• Court: Missouri Court of Appeals

Page 169

786 S.W.2d 169

STATE of Missouri, Respondent, v. Lisa SPROUL, Appellant.

No. WD 41460.

Missouri Court of Appeals Western District.

March 20, 1990.

K. Louis Caskey, Kansas City, for appellant.

William L. Webster, Atty. Gen., Christine A. Alsop, Asst. Atty. Gen., Jefferson City, for respondent.

Before GAITAN, P.J., and CLARK and MANFORD, JJ.

CLARK, Judge.

Lisa E. Sproul was convicted by a jury of distribution and delivery of cocaine, § 195.020, RSMo 1986, and was sentenced to a term of five years' imprisonment. She raises two claims of trial error on appeal: (1) the overruling of her motion for disclosure of the identity of a confidential informant, and (2) the refusal to instruct the jury on the defense of entrapment. We find no error and therefore affirm the judgment.

The facts of the case, consistent with the verdict of the jury are as follow. On September 3, 1987, undercover agent Roberts was contacted by the confidential informant who stated that a purchase of cocaine from one Wayne Hampton could be arranged. The informant was instructed to proceed. Later that day, Roberts met with the informant, Hampton and one Megan McQuerry. Roberts supplied money which the informant gave Hampton to make the purchase. Hampton indicated he would go to get the drugs and would telephone Roberts to agree on a meeting. Roberts and the informant then went to an apartment to await Hampton's call. The telephone was equipped with a recording device.

Soon the telephone in the undercover apartment rang and the caller was appellant. She engaged in a conversation with Roberts first and then with the confidential informant. The subject was a meeting time and place for delivery of the drugs. It was agreed they would return to the same place where Roberts had met Hampton earlier. A few minutes later, appellant called again to report that they were on their way. Both conversations were recorded.

The meeting then soon followed. Present were Roberts, the informant, Hampton, his father, a Rick Benson, McQuerry and appellant. The meeting place was a restaurant parking lot. Arrangements had previously been made for a police surveillance team to be present, primarily for the protection of officer Roberts. Two officers, Landon and Gonzales, were seated in a car parked in the lot some sixty to seventy yards away from Roberts and the others.

When Roberts and the informant arrived for the meeting, Hampton, his father and Benson were seated in a car and McQuerry and appellant were standing beside the car. The three men got out of the car and appellant motioned for Roberts to get into the car. She was followed by appellant who entered the car and then handed Roberts the drugs.

After the transaction had been concluded and the parties had left, appellant again telephoned the undercover apartment and spoke with the informant saying, in part, "Get your ass home * * * Joe, you were supposed to do some with me. * * * Why can't you come home?"

In her first point, appellant contends the court should either have ordered disclosure of the confidential informant or dismissed the case. She claims disclosure of the identity of the informant was essential to granting her a fair trial because the informant arranged and participated in the sale of the cocaine and his testimony was essential to her defense of mistaken identity.

As a general rule, communications made by informers to government officials are privileged and need not be disclosed. State v. Yates, 442 S.W.2d 21, 25 (Mo.1969). The purpose of the privilege is not to protect the informer specifically but to protect and further the public interest in law enforcement by encouraging citizens to communicate their knowledge of the commission of crimes to law enforcement officials. State v. Taylor, 508 S.W.2d 506, 511 (Mo.App.1974). Concepts of fundamental fairness create exceptions to the rule in some cases, however, and there are circumstances in which disclosure of the identity of an informant is essential to enable defendant to adequately establish a defense. State v. Amrine, 741 S.W.2d 665, 671 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1756, 100 L.Ed.2d 218 (1988); State v. Hall, 761 S.W.2d 691, 693 (Mo.App.1988). The determination of whether a defendant can have a fair trial without disclosure of the identity of an informant rests within the sound discretion of the trial court. State v. Funkhouser, 729 S.W.2d 43, 44 (Mo.App.1987). In reviewing the trial court's ruling, this court balances the relevance of disclosure and importance to the defense against the state's need for nondisclosure. Hall, 761 S.W.2d at 693. It is the burden of the defendant to develop a record showing the need for disclosure. State v. Payne, 660 S.W.2d 24, 25 (Mo.App.1983).

There are circumstances in which the need for disclosure of the identity of the informant is more compelling. While some cases have held that where the informant participates in the transaction his identity should be disclosed, participation alone is not enough to require disclosure. Taylor, 508 S.W.2d at 512. Where there is participation plus other factors such as mistaken identity, contradictory testimony, denial of the accusation or where the informant is the sole witness, then for purposes of fairness, the identity may be required to be disclosed. Id. (Emphasis added). Other instances where the courts have tended to require disclosure are when the informant is the sole participant, other than the accused, in the drug transaction charged and the informant is the only witness in a position to be called on behalf of the defendant, State v. Nafziger, 534 S.W.2d 480, 483 (Mo.App.1975); where the testimonies of the state and defense witnesses are contradictory as to whether defendant committed the crime charged, id.; and where mistaken identity of the defendant is a possibility, State v. Wandix, 590 S.W.2d 82, 85, 86 (Mo. banc 1979).

In this case, the court did not err in denying appellant's motion for disclosure. The ruling was correct for several reasons.

We first observe that appellant failed to develop a record requiring disclosure. The record does not establish that had the informant's whereabouts been disclosed when requested he would have been able to testify, nor does anything in the record even indicate the state knew the informant's whereabouts. See State v. Funkhouser, 729 S.W.2d at 45. Moreover, although the parties in their briefs do not discuss the relationship between the appellant and the informant, the content of the recorded conversations indicates that appellant and the informant were acquainted and even intimate. Appellant knew the informant's name and where he lived. The telephone calls recorded were made by the appellant from the informant's apartment. To have the state name him and say in a formal disclosure that he was the confidential informant who figured in arranging the drug sales would have given appellant nothing she did not already have. See State v. Younger, 633 S.W.2d 161, 162 (Mo.App.1982). Although counsel claimed in oral argument that appellant could not locate the witness, there is nothing in the record to show that efforts were made to find the informant or that he was unavailable to the appellant before or during the trial.

Second, even if the appellant had met her burden of establishing the need for disclosure, this is not a case where the facts require disclosure. The appellant and the informant were not the sole participants in this crime. The informant arranged the initial meeting between officer Roberts and Hampton. Appellant and...