State v. Wandix, 61201

• Decision Date: 19 October 1979
• Docket Number: No. 61201,61201
• Citation: 590 S.W.2d 82
• Parties: STATE of Missouri, Respondent, v. Vincent WANDIX, Appellant.
• Court: Missouri Supreme Court

Page 82

590 S.W.2d 82

STATE of Missouri, Respondent, v. Vincent WANDIX, Appellant.

No. 61201.

Supreme Court of Missouri, En Banc.

Oct. 19, 1979.

Rehearing Denied Nov. 14, 1979.

James J. Knappenberger, Shaw, Howlett & Schwartz, Clayton, for appellant.

John Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.

DONNELLY, Judge.

Appellant, Vincent Wandix, was convicted in the Circuit Court of St. Louis County Missouri, of selling a controlled substance (§ 195.020, RSMo 1969), and his punishment was assessed at imprisonment for a term of ten years. Following rendition of judgment and imposition of sentence, an appeal was perfected to the Eastern District of the Court of Appeals. The case was transferred here after opinion. We decide the case the same as on original appeal. Mo.Const. Art. V, § 10.

On March 16, 1976, an indictment was filed in the Circuit Court of St. Louis County charging appellant with the sale of heroin to undercover detectives on July 23, 1975.

At trial the State introduced the testimony of officers Leeman Dobbins and Leon Bates of the St. Louis City Police Department and Officer Michael McDonald and chemist Rodger Dale Corcoran of the St. Louis County Police Department. Appellant introduced the alibi testimony of Pierre and Deschiell Wandix, his brothers, and of Unis Taylor and Albert Hirsch, friends.

The testimony of the officers showed the following:

Officers Bates and Dobbins met Officer McDonald at the office of the St. Louis County Police Department in the early evening on July 23, 1975. A confidential informant was with Officer McDonald. Officer McDonald was not previously acquainted with the informant. He was passed along to him at the beginning of his shift with an assignment to survey the undercover City officers and informant as they made a drug transaction. Officer McDonald received reliable information from the informant on a substantial number of occasions subsequent to the one at issue. The informant was not previously known to Officer Dobbins or Officer Bates. Dobbins did not use the informant at any time subsequent to the incident at issue. Bates did not testify as to any subsequent use.

The officers and the informant proceeded in two cars to the Beechum Park area of the County where they were to meet a drug dealer named Vincent Wandix. Wandix was not personally known to Dobbins. Bates may have seen him before. In Beechum Park, McDonald provided loose surveillance by driving around the area. Bates was dropped off at a corner to provide close surveillance while Dobbins and the informant met Wandix. The informant introduced Dobbins to Wandix as his "partner." After a brief exchange of words, Wandix told them to follow him to a residence at 942 South Taylor.

Dobbins, the informant and Wandix proceeded to the South Taylor address in two cars. Wandix drove a Cadillac. Dobbins and the informant followed in their car. Officer Bates was picked up and again dropped off near the South Taylor address by Dobbins. After arriving at 942 South Taylor, Dobbins entered the residence with the person identified and introduced by the informant as Wandix and purchased $20 worth of heroin from him. There is an uncertainty as to whether the informant entered the residence. Dobbins testified that he did not, that he remained in the car parked outside. Bates testified that the informant did accompany Dobbins and Wandix into the house. There is no claim or indication that anyone other than Dobbins, Wandix, and possibly the informant was in or at 942 South Taylor. The appellant was identified in court as the seller of the heroin by both Dobbins and Bates.

After completing the transaction, the officers regrouped and returned to the County Police offices where the purchased substance was turned over to the police chemist, Rodger Corcoran, and determined to be heroin.

At the close of the trial, the jury returned a verdict of guilty.

The essential issue on appeal is whether the informant's identity should have been disclosed to appellant.

Appellant contends the trial court erred in overruling his motion to disclose the confidential informant.

The State contends that appellant failed to properly raise and preserve the disclosure issue and that the trial court properly protected the identity of the informant.

The State, in its brief, presents two reasons for not reaching the merits of the disclosure issue. The first is that appellant's motion was not timely under Rule 25.31. That rule provides, in relevant part,: " * * * motions for discovery shall be made not later than twenty days after arraignment in the court having jurisdiction to try the offense charged." Motions to Disclose informants should ordinarily come within the discovery time limit since Rule 25.39, enacted simultaneously with Rule 25.31, addresses the circumstances in which the identity of an informant is subject to disclosure. It would certainly seem desirable to make motions to disclose informants within Rule 25.31 limits, where possible, since timely motions would avoid delay, surprise and confusion.

However, the question of the timeliness of the motion is not properly raised in this case. The prosecutor did not oppose the motion on grounds of timeliness at trial. The trial judge took the motion under consideration, heard testimony on the confidential nature of the informant and the informant's relation to the transaction at issue, and specifically ruled the motion on the merits of disclosure. In these circumstances, this assertion by the State is without merit.

The second reason given by the State for not reaching the merits of the disclosure issue is that appellant failed to properly raise and preserve the issue at trial. The State contends: "The argument that identity is a crucial issue in the case and that therefore the 'unidentified individual' was a necessary and material witness for the appellant, for that reason, is advanced for the first time on appeal. For this reason this point is not preserved for review, because never presented to the trial court in the context of a mistaken identity situation."

The issue as to disclosure does not appear, from the record, to have arisen until cross-examination of Officer Dobbins. When appellant's attorney attempted to question Officer Dobbins as to the identity of the informant, the prosecutor asked to approach the bench and a conference was held. Appellant moved for disclosure. The prosecutor objected on the grounds of confidentiality. The court recessed the trial for a hearing in chambers as to the matter of the unidentified informant. After further examination of Officer Dobbins in chambers, appellant's attorney moved for disclosure: " * * * (F)or the reason that I don't think he qualifies as Mr. Nangle (the prosecutor) would have the court, or ask the court to believe as being a confidential informant. He's equally a participant in the alleged offense as any other police officer that was there. He was present when this was supposed to have taken place. He's identified my client to the Police Officer, and indicated to him that he was Vincent Wandix, and I think that in fact he is the only other lay-witness to this case, that would be available to either side. I don't know who he is but he is or has a part in this matter in this issue or controversy in dispute. There is alibi defense pleadings in this case; there are alibi defense witnesses that have been endorsed, and this unidentified individual is the only other lay-witness who can contradict, disspell (sic), Or prove the issues that are in controversy except the government witnesses, and I don't think this defendant can have a fair trial if the State cloaks him as an unidentified confidential informant, * * *." (Emphasis added.)

The motion was overruled, "at this * * * particular time during the trial."

A further hearing on the Motion to Disclose was held in chambers during the testimony of Officer McDonald. This was after Officer Bates had testified that the informant accompanied Dobbins and Wandix into the residence at 942 South Taylor. After McDonald was examined in chambers the court ruled finally on the Motion to Disclose. After taking cognizance of defendant's alibi defense, the court overruled the motion, citing State v. Taylor, 508 S.W.2d 506 (Mo.App.1974).

We must conclude from the record that the trial court and the parties recognized that identity was a crucial issue in the case.

We turn then to the essential question whether the informant's identity should have been disclosed to appellant.

In Roviaro v. United States, 353 U.S. 53, 59-62, 77 S.Ct. 623, 627-629 (1957) the United States Supreme Court addressed our question, as follows:

"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. Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 176, 83 L.Ed. 151; In re Quarles and Butler, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080; Vogel v. Gruaz, 110 U.S. 311, 316, 4 S.Ct. 12, 14, 28 L.Ed. 158. 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.

"A * * * limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer's identity * * * 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.

"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...