State v. Walston
| Decision Date | 11 August 2020 |
| Docket Number | DA 18-0501 |
| Citation | 469 P.3d 716,401 Mont. 15,2020 MT 200 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Shawn Marie WALSTON, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Chad Wright, Appellate Defender, James Reavis, Assistant Appellate Defender, Helena, Montana
For Appellee: Timothy C. Fox, Montana Attorney General, Mardell L. Ployhar, Assistant Attorney General, Helena, Montana, Kendra K. Lassiter, Park County Attorney, Livingston, Montana
¶1 Shawn Marie Walston appeals from the August 7, 2017 Order Denying Motion for Disclosure of Confidential Informant and Alternative Motion to Dismiss issued by the Sixth Judicial District Court, Park County. After the District Court's denial of her pretrial motion, a Park County jury convicted Walston of criminal distribution of dangerous drugs, methamphetamine, in violation of § 45-9-101, MCA, and criminal possession of dangerous drugs, methamphetamine, in violation of § 45-9-102, MCA. We restate the issue on appeal as follows:
Whether the District Court erred in denying Walston's motion to disclose the identity of a confidential informant.
¶2 We reverse and remand for further proceedings consistent with this Opinion.
¶3 In March 2016, a confidential informant told Detective Tim Barnes of the Missouri River Drug Task Force that Walston was selling methamphetamine in the area. The informant had previously provided useful information to the Task Force. Detective Barnes corroborated the information from the confidential informant with other sources and applied for a search warrant to use a body wire to record a controlled buy between the confidential informant and Walston, which was granted.
¶4 On March 10, 2016, Detective Barnes supervised a surveillance team of five officers to oversee the controlled buy. Before the buy, officers searched the confidential informant's person and vehicle to make sure she did not have access to money or drugs. After this preliminary search, Detective Barnes put a body wire on the confidential informant, which could record audio, and provided the confidential informant with $325 to purchase methamphetamine from Walston. Two detectives followed the informant in a separate car to the trailer park where Walston lived. Three other officers were already stationed in two vehicles at the trailer park. Only two of the five officers in the surveillance team could see Walston's trailer from their places in the vehicles, but all five officers could hear the transmission from the confidential informant's body wire over their radios.
¶5 The confidential informant first met Walston outside her trailer. After a short conversation between the two women outside, the women went inside the trailer. One officer witnessed them enter the trailer, but none of the officers could see inside the trailer. The transcript produced by the State during discovery, but not entered into evidence at trial, shows conversation relating to the weight and method of ingestion of methamphetamine.
¶6 Upon leaving Walston's trailer, the confidential informant drove about eight miles to a predetermined meeting location. She provided officers with a small plastic bag containing a crystalline substance that field tested positive for methamphetamine. Officers again searched the informant's person and vehicle and did not recover any additional contraband or money.
¶7 The State charged Walston with one count of criminal distribution of dangerous drugs, methamphetamine, in violation of § 45-9-101, MCA, and criminal possession of dangerous drugs, methamphetamine, in violation of § 45-9-102, MCA. In response to Walston's discovery requests, the State declined to reveal the identity of the confidential informant who participated in the controlled buy. Walston filed a motion asking the District Court to compel the State to disclose the informant's identity or to dismiss the case. After laying out the facts alleged by the State in its information that showed the informant was actively involved in the charged criminal activity, Walston argued:
[T]here is no doubt that the [informant] is able to [ ]give testimony relevant to the substance of the charges in this case (a material issue) based upon the facts set forth herein. Since the [informant's] testimony is material and may in fact provide exculpatory evidence, the State has a duty to disclose her identity pursuant to both § 46-15-322(2)(c) and Rule 502.
The State responded it was relying on its privilege to decline to provide the identity of the informant. Because the informant was not going to testify at trial, the State maintained, the burden was on Walston to demonstrate a need for the disclosure beyond mere speculation the testimony of the informant would be relevant.
¶8 At the hearing on the motion, Walston's argument focused on whether the officers would be able to identify her as the source of the drugs found on the confidential informant's person upon leaving the trailer court. The State provided testimony from Detective Barnes to counter this. Barnes explained officers had been given a photograph of Walston before the operation and the officers in view of the trailer could positively identify Walston as the woman who spoke with the confidential informant outside the trailer. Barnes answered affirmatively when asked whether disclosing the identity of the informant would "compromise the informant's safety." This was the only evidence regarding the informant's safety presented to the District Court. Walston maintained at the hearing the informant would be able to give testimony relevant to the substance of the charges, arguing she was entitled "to cross-examine and confront the confidential informant as to who exactly was present in the residence, what exactly occurred, and whether or not it was, in fact, Ms. Walston that participated in this deal." The District Court denied Walston's motion.
¶9 The jury at Walston's first trial was unable to reach a verdict. Ten jurors voted to convict, while two voted to acquit. A second trial was held March 20, 2018.
¶10 At the second trial, all five officers testified about their roles and observations during the controlled buy. Detective Barnes testified he heard conversation between the two women "consistent with a drug transaction." On cross-examination, Walston's counsel elicited testimony from the officers that the audio quality of the body wire's transmission was poor and scratchy and only parts of the conversation between the confidential informant and Walston were intelligible. The transcription shows over 120 portions of the audio recording are unintelligible. Detective Barnes also testified the confidential informant had moved out of the area and no longer worked for the Task Force. The jury convicted Walston of both counts.
¶11 We review orders granting or denying discovery for an abuse of discretion. State v. DuBray , 2003 MT 255, ¶ 103, 317 Mont. 377, 77 P.3d 247. The question whether a defendant's right to due process has been violated is a constitutional question over which this Court exercises plenary review. State v. Hauer , 2012 MT 120, ¶ 23, 365 Mont. 184, 279 P.3d 149.
¶12 The District Court provided three grounds for its denial of Walston's motion to compel disclosure of the confidential informant. First, the court explained "[p]ursuant to Rule 502 of the Montana Rules of Evidence the State may refuse to disclose the identity of an informant if the informant is not going to testify." Second, the court determined disclosure was not required if disclosure would result in substantial risk to the informant and Detective Barnes testified affirmatively when asked whether the informant's safety would be compromised. Finally, the court explained mere speculation about the possible relevance of the informant's testimony is insufficient to warrant disclosure of the informant's identity. It determined Walston failed to provide anything concrete or substantive to establish "that disclosure is necessary to properly prepare for trial, that the informant might possess exculpatory information, or that the informant may have been involved in the crime."
¶13 Walston appeals, arguing she had the right to know the identity of the informant because the informant played a continuous, active, and primary role in the alleged crime. The State counters Walston failed to meet her burden of showing her need for disclosure was sufficient to override the government's interest in protecting the identity of the informant, but rather provided only speculation and conjecture the informant would provide relevant testimony.
¶14 The State has the privilege to refuse to disclose the name of an informant under certain circumstances. Roviaro v. United States , 353 U.S. 53, 59, 77 S. Ct. 623, 627, 1 L.Ed.2d 639 (1957). The privilege has limits, however: "Where the disclosure of an informer's identity, or 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." Roviaro , 353 U.S. at 60-61, 77 S. Ct. at 628.
¶15 The enactment of M. R. Evid. 502 in 1977 codified this privilege in Montana. Rule 502 incorporated the balancing test from Roviaro this Court had previously adopted in State ex rel. Offerdahl v. District Court of the Eighth Judicial District , 156 Mont. 432, 481 P.2d 338 (1971). See M. R. Evid. 502, cmt. c. Whether the State may rely on its privilege to keep the confidential informant's identity...
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