State v. Yates, 53641

• Decision Date: 09 June 1969
• Docket Number: No. 1,No. 53641,53641,1
• Citation: 442 S.W.2d 21
• Parties: STATE of Missouri, Respondent, v. Russell James YATES, Appellant
• Court: Missouri Supreme Court

Page 21

442 S.W.2d 21

STATE of Missouri, Respondent, v. Russell James YATES, Appellant.

No. 53641.

Supreme Court of Missouri, Division No. 1.

June 9, 1969.

Johns C. Danforth, Atty. Gen., Jefferson City, James W. Herron, Sp. Asst. Atty. Gen., St. Louis, for respondent.

William E. Brand, Jr., James W. Durham, St. Louis, for appellant.

HOUSER, Commissioner.

Russell James Yates, convicted by a jury of illegal sale of a stimulant drug and sentenced to 8 years' imprisonment, has appealed.

Defendant, an indigent, was arrested on December 9, 1966. An attorney was appointed for him on January 16, 1967. Appellant scores this 38-day delay as unreasonable, claiming irreparable harm because during the interim material evidence was lost; evidence which he regards as indispensable to the proper preparation of his defense. The evidence in question is 70 feet of movie film out of 100 feet of film shot by a TV newsreel cameraman who on the evening of December 9, 1966 monitored a police broadcast, heard and responded to a call to 5091 Delmar Boulevard, saw officers in front of the building, got out of his car with his camera, followed the officers into the building with his camera running, and entered a room where he saw three people, their hands up in the air, being searched by officers. An officer 'recovering some vials' from a toilet was photographed. All of the films taken were spontaneous and not posed. The film was processed and 30 feet of it was cut out, spliced and shown on television that evening. The remaining 70 feet was thrown into a cut-out basket at the TV station, where film is ordinarily kept from a week to a month and then thrown out. It may be inferred that the 70 feet was never shown to or in the possession of the police, eventually was discarded and is now irretrievable.

The difficulty with appellant's contention is that there is no showing that the film if saved would have demonstrated his innocence, depicted any fact favorable to his defense, impeached any state witness on any material fact, or revealed any fact not testified to orally. The film was not taken at the time of the commission of the crime, but afterward during the officers' raid and the arrests of defendant, Williams and Montgomery. The film would have shown those three persons and any others present, including the officers, and their physical movements and actions at the time of arrest, but these facts were narrated in detail by several witnesses. So far as may be determined the missing film would have depicted nothing but cumulative facts.

Appellant, referring to the movie film, further contends that the circuit attorney's office and the police officers 'acted to suppress evidence favorable to defendant.' As indicated, appellant has not demonstrated that the missing film would have been favorable to his defense, or how or in what manner it could have assisted appellant in establishing his innocence.

Appellant contends that because of the difficulties he encountered in the 'maneuverings' of the police officer during the time appellant was trying to obtain from him the physical control and possession of the film, and to locate and interview the cameraman, appellant was obliged to apply for several continuances and therefore was denied a speedy trial. Appellant says that the activity of the police and circuit attorney's assistants was unlawful and deprived him of due process of law. On the question of speedy trial: The indictment in this case was filed March 21, 1967. The trial began on September 25, 1967. During the interim 6-month period appellant filed numerous motions for continuance, to suppress evidence, to inspect and make copies of various documents and film, to compel disclosure of the name of an informer, to dismiss, and to produce evidence favorable to defendant. The disposition of these motions was necessarily time-consuming. The State asked for no continuances and filed only one motion (to quash a subpoena duces tecum). There is nothing to indicate unreasonable delay in the prosecution or any disposition on the part of the state to prolong defendant's incarceration or to harass him. (See State v. Hicks, 353 Mo. 950, 185 S.W.2d 650). The delays were occasioned and requested by appellant and under the facts there was no denial of his constitutional right to a speedy trial. State v. Holmes, Mo.Sup., 389 S.W.2d 30, reaffirmed 428 S.W.2d 571.

The next question is whether the case must be remanded for error of the court in refusing to compel disclosure of the name of the informer. On the evening of December 8, 1966 (the night before appellant was arrested) a negro male informer whose identity was not revealed accompanied Officer Bardley to the premises at 5091 Delmar, intent on purchasing drugs from appellant. The officer was dressed in civilian clothes. In answer to the officer's knock the door was opened by a negro woman named Frankie Williams. The officer asked her if Russell Yates was there and she said 'no.' The officer then asked to buy a 'trey bag' (a $3 packet of drugs). She went into the apartment, returned in a few moments with a small aluminum packed and gave it to the officer in exchange for three one dollar bills. The packet contained a powder known at Dextro Amphetamine Hydrochloride. The next evening, December 9, the two men returned to that address, knocked, Frankie Williams answered the door, and the two men told her that they wanted to see Russell Yates. She opened the door, walked into a room where two negro males were standing by a table. Bardley followed her and the informer followed Bardley. Bardley, who had seen photographs of Russell Yates, recognized him. Bardley walked over to a table on which there were aluminum foil packages, syringes and vials. The other man in the room was Lloyd Montgomery. Russell Yates asked Bardley what he wanted. Bardley said 'Give me a trey bag.' Yates reached to the table, picked up an aluminum foil package and handed it to Bardley, who gave Yates three $1 bills. Bardley turned and went out first. The informer, who had not spoken, left after Bardley left, walking behind Bardley. The packet contained a powder known as Dextro Amphetamine Hydrochloride. Bardley reported his purchase to other officers, who returned to 5091 Delmar and arrested Yates, Montgomery and Williams. When the officers knocked on the door Frankie Williams opened the door. When the officers announced their identity and undertook to arrest her she slammed the door in their faces and ran. The officers pursued her into the apartment. Yates threw two vials into a toilet and was attempting to flush the toilet when intercepted by an officer. The vials contained the drug in question. The three $1 bills handed to appellant by Bardley were found on appellant's person. After his indictment appellant through his counsel demanded of the police department and circuit attorney's office that they furnish him with the name, identity and whereabouts of the informer. They refused. Appellant filed a motion for a court order requiring the disclosure of this information on the ground that the informer was an eyewitness to the alleged sale and 'an indispensable witness to the defense,' and that the refusal to disclose the informer's identity deprived appellant of his 'constitutionally protected right to a fair and speedy trial and the right to confront the witnesses against him.' The court overruled the motion.

As a general rule communications made by informers to governmental officials are privileged. The privilege is founded upon public policy--the public interest in effective law enforcement. By preserving their anonymity citizens are encouraged to communicate to law enforcement officers their knowledge of the commission of crimes. The privilege is designed not for the protection of the informer but for the protection of the public interest. State v. Edwards, Mo.Sup., 317 S.W.2d 441, l.c. 446, 450, and authorities there cited. There are exceptions to the rule and the court may compel disclosure 'if it appears necessary in order to avoid the risk of false testimony or in order to secure useful testimony,' Wigmore on Evidence, (McNaughton rev. 1961), Vol. VIII, § 2374; where the disclosure of the informer's identity or the contents of the communication 'is relevant and helpful to the defense of an accused, or is essential to fair determination of a cause,' Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639; or if the disclosure of the informer's identity 'is necessary to show the innocence of one accused of a crime.' Anno.--Disclosure of Identity of Informer, 83 L.Ed. 157. Whether the defendant can have a fair trial without requiring disclosure is a matter resting within the discretion of the trial court. State v. Redding, Mo.Sup., 357 S.W.2d 103(7). In balancing the interest of the individual in the proper preparation of his defense against the interest of the public in promoting the flow of information so as to protect society against the criminal element each case must stand on its own bottom, and under the facts of the particular case consideration must be given to 'the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.' Roviaro v. United States, supra; State v. Edwards, supra.

Under these tests and rules the trial court may not be convicted of an abuse of discretion in upholding nondisclosure. The informer told the officers who was selling the drug and where purchases could be made. Although this informer was something more than a mere 'tipster,' in that he accompanied the officer to the premises, entered with him and witnessed the sale of the drug, there is no evidence that the informer introduced the police officer to the defendant, or ingratiated himself and the officer to defendant, or so conducted himself as to secure defendant's confidence, as in Gilmore v. United States, 5 Cir., 1958, 256 F.2d 565; nor did the informer...