State v. Vanmanivong

• Citation: 661 N.W.2d 76,261 Wis.2d 202,2003 WI 41
• Decision Date: 14 May 2003
• Docket Number: No. 00-3257-CR.,00-3257-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Phonesavanh VANMANIVONG, a/k/a Sing Chen, Defendant-Appellant.
• Court: Wisconsin Supreme Court

261 Wis.2d 202

2003 WI 41

661 N.W.2d 76

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Phonesavanh VANMANIVONG, a/k/a Sing Chen, Defendant-Appellant.

No. 00-3257-CR.

Supreme Court of Wisconsin.

Oral argument September 12, 2002.

Decided May 14, 2003.

For the plaintiff-respondent-petitioner the cause was argued by James M. Freimuth, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the defendant-appellant there was a brief by John J. Grau and Grau Law Office, Waukesha, and oral argument by John J. Grau.

¶ 1. JON P. WILCOX, J.

This case is before this court on a petition for review filed by the State of Wisconsin. The State seeks review of a published opinion of the court of appeals, State v. Vanmanivong, 2001 WI App 299, 249 Wis. 2d 350, 638 N.W.2d 348, which conditionally reversed five convictions of delivering cocaine to undercover officers and remanded the case to the circuit court for a hearing on whether the identities of two confidential informers should have been disclosed. A jury found the defendant, Phonesavanh Vanmanivong, a/k/a Sing Chen (Vanmanivong), guilty of eight counts of delivering cocaine in violation of Wis. Stat. § 961.41(1)(cm)1 (1999-2000).¹ Before trial, defense counsel requested disclosure of the identities of the State's two confidential informants. The Sheboygan County Circuit Court, L. Edward Stengel, Judge, after receiving affidavits from the informers and soliciting an unsworn memo from law enforcement, found, in camera, that disclosure of the informers' identities was not warranted and denied the motion. After Vanmanivong was convicted, he appealed his convictions on the basis that the circuit court had erroneously exercised its discretion by failing to follow the procedural requirements of Wis. Stat. § 905.10(3)(b). The court of appeals found the circuit court erred by relying upon an unsworn memo with regard to the five convictions based on alleged transactions where an informant was involved. It reversed and remanded the case for another in camera hearing in which the circuit court would take testimony on the identity of the individual who sold drugs to the undercover officers and determine if disclosure of the informers' identities was warranted. We reverse the decision of the court of appeals.

¶ 2. This case presents two issues. First, we consider whether the court of appeals applied the correct legal standards in analyzing the circuit court's in camera procedure. Second, if, as both parties now agree, the circuit court erred in relying upon an unsworn memo in its decision to deny the defense motion to disclose the identities of the confidential informers, we consider whether such error was harmless.

¶ 3. We reverse the court of appeals' decision, because we find that the court of appeals erred in its statement of Wisconsin law regarding disclosure of informers' identities. Also, we agree with the court of appeals that the circuit court erred in relying upon an unsworn memo as basis for its decision, but we reverse the court of appeals' decision because we find that error to be harmless in the context of this case.

I

¶ 4. The following facts are relevant for purposes of this review. Beginning in February 1999, undercover police officers began purchasing crack cocaine from a person they knew only as "Shorty." From February 1999 through June 1999, Special Agents Neil McGrath and Thomas Sturdivant of the Division of Narcotics Enforcement in the Wisconsin Department of Justice participated in eight drug buys from Shorty. Two confidential informants who had purchased cocaine from Shorty on previous occasions introduced the agents to Shorty. These informants worked independently, one working with Agent McGrath and the other with Agent Sturdivant.

¶ 5. A confidential informant was present at five of the eight drug transactions with Shorty conducted by either Agent McGrath or Agent Sturdivant. Agent McGrath had a confidential informer identified as DDI-3444² with him when he bought cocaine from Shorty on February 8, 1999 (Count 1), and February 23, 1999 (Count 3). Agent Sturdivant handled six cocaine buys from Shorty and a different informer, DDI-3432, was present on three of those occasions. DDI-3432 arranged and went along with Agent Sturdivant for buys occurring on February 18, 1999 (Count 2), February 25, 1999 (Count 4), and March 5, 1999 (Count 5). On March 11, 1999 (Count 6), March 25, 1999 (Count 7), and May 18, 1999 (Count 8), Agent Sturdivant arranged and completed the last three buys from Shorty without the assistance of a confidential informant.

¶ 6. Before the buy on February 23, 1999, Agent McGrath positively identified a photograph of a Pao Moua as the person he knew as Shorty, who sold him cocaine. McGrath testified at trial that the photo was provided after a computer database linked the nickname "Shorty" with the name Pao Moua. Beginning with the report dated February 18, 1999, both Agent McGrath and Agent Sturdivant referred to Shorty as Moua in their reports and used the names interchangeably.³ Sturdivant testified at trial that he did not come up with Moua's name independently; rather, he began using the name Moua in his reports because it was given to him by Agent McGrath or other officers. ¶ 7. Sometime before May 18, 1999, the officers realized Shorty could not be Pao Moua, because Detective Kirk Bloedorn found out Pao Moua had been incarcerated out of state during the entire time the drug investigation took place. Bloedorn later testified to that effect at Vanmanivong's trial. The agents had doubts about Shorty's identity from early on in the investigation, so the officers conducted surveillance on several occasions between April 1999 and June 1999 to ascertain Shorty's true identity. In April 1999, Detective Bloedorn participated in a traffic stop of three Asian individuals. One of the people stopped identified himself as Sing C. Chen, and gave a date of birth of June 17, 1968. Sing Chen gave his address as 912 Ontario Avenue in Sheboygan, Wisconsin. Later, photographs of this group were taken in the area of 912 Ontario Avenue. From these photographs, Agent McGrath was able to positively identify Sing Chen as Shorty. In his report regarding the final drug buy on May 18, 1999, Agent Sturdivant then referred to the person who sold him drugs only as Shorty. He later testified that he did so because he recognized Shorty by sight, but was not sure of his actual name at the time.

¶ 8. In June 1999, Sing Chen⁴ was charged with eight counts of selling cocaine to undercover officers. Before trial, the defendant filed a motion pursuant to Wis. Stat. § 905.10, requesting that the identities of the two confidential informants be disclosed. He asserted that the informers might be able to provide key testimony important to his defense of misidentification. The defendant, in his offer of proof, referenced the police reports in which Pao Moua was identified as the person who sold the drugs to the agents and a police report in which an informer identified Shorty as a "Hmong male in his mid 20's [sic]." Vanmanivong is over thirty years old. Vanmanivong argued that identity was a determinative issue and that because informants were present at several of the drug sales, the informers "may be able to give testimony necessary to a fair determination of the issue of guilt or innocence." At a hearing on the motion, the State conceded that Vanmanivong's offer of proof met the initial burden under Wis. Stat. § 905.10(3)(b) and acknowledged that the next step would be an in camera inspection. The State offered to have the informants present to testify and identify Vanmanivong from a photo lineup. The circuit court rejected such an approach and requested, instead, that law enforcement conduct a photo lineup and submit affidavits to the court. The court requested a procedure be done by which the informants would "identify who they are referring to as Shorty."

¶ 9. On July 29, 1999, and August 4, 1999, the two informers were interviewed separately and question-and-answer style affidavits from these interviews were subsequently signed by the informers and submitted to the court. These affidavits state that the informers were shown a photograph. Both informers identified the person in the photograph as the person they knew as Shorty. Unfortunately, the photograph used for the photo lineup was not submitted to the court, and no other affidavits were provided with the informers' affidavits to reflect that the photograph shown to the informers was, in fact, a photograph of the defendant.⁵ Following submission of the affidavits, the court, by its own initiative and without consulting either of the parties, contacted law enforcement and requested additional clarifying information.

¶ 10. The follow-up communications to the court consisted of two typed memos, purportedly from Detective Bloedorn. These memos were not affidavits, but rather unsworn memos from Detective Bloedorn to the court. One of these memos (Exhibit 1) discussed information about the cooperation of a confidential informant, identified in the memo as Lanh Neauone and CI-3456. This document was a forgery. At trial, the parties stipulated that Exhibit 1 was, in fact, created by the defendant. Detective Bloedorn testified that he did not create Exhibit 1. The other memo (Exhibit 43), however, was submitted by Detective Bloedorn to the court and explains the initial misidentification of Shorty and the informers' identification of Shorty. ¶ 11. On October 22, 1999, the circuit court made an oral ruling regarding Vanmanivong's motion for disclosure. The court stated:

After reviewing the initial affidavits, I gained little understanding from what I had originally in reviewing all of the reports, and I then requested further clarification from the investigative agency as to the informant's understanding or knowledge of the identity of the defendant, and I...