DeLuca v. State

MOYLAN, Judge. A miscommunication unquestionably occurred in this case. The miscommunication ultimately worked to the detriment of the appellant. There is serious question, however, as to what, if any, impact it had.

There is serious question, moreover, about who, if anyone, was to blame for the miscommunication. Appellant’s counsel took a passing remark by the state’s attorney, made in the course of an argument over compelling the disclosure of the identity of an informant, and, without seeking anything by way of formal confirmation or commitment, chose to treat it as some sort of guarantee or stipulation. At the subsequent trial, without any effort to interview a police witness, appellant’s counsel blindly took “a leap of faith” while pursuing a line of inquiry of extremely doubtful relevance. That inquiry backfired upon the appellant.

He now cries that the combination of unfortunate circumstances should compel a reversal of his conviction. We emphatically disagree. We begin our analysis by restating one of the most fundamental tenets of appellate review: Only a judge can commit error. Lawyers do not commit error.

Witnesses do not commit error. Jurors do not commit error. The Fates do not commit error. Only the judge can commit error, either by failing to rule or by ruling erroneously when called upon, by counsel or occasionally by circumstances, to ³⁹⁸ make a ruling.

As we pointed out in Ball v. State, 57 Md.App. 338, 359 , 470 A.2d 361 (1984): “ ‘Error’ is a precise term of art in the appellate context. No matter how reprehensible their conduct, trial attorneys, civil or criminal, for the State or for the defense, cannot, by definition, commit error; their conduct can do no more than serve as the predicate for possible judicial . error. As Judge Powers carefully and thoughtfully analyzed for this Court in Braun v. Ford Motor Company, 32 Md.App. 545, 548 , 363 A.2d 562 (1976): ‘We know of no principle or practice under which a judgment of a trial court may be reversed or modified on appeal except for prejudicial error committed by the trial judge. It is a misuse of language to label as error any act or failure to act by a party, an attorney, a witness, a juror, or by anyone else other than the judge.

In other words, error in a trial court may be committed only by a judge, and only when he rules, or, in rare instances, fails to rule, on a question raised before him in the course of a trial, or in pre-trial or post-trial proceedings. Appellate courts look only to the rulings made by a trial judge, or to his failure to act when action was required, to find reversible error.’ ” (Emphasis in original). Our inquiry, therefore, will focus not upon whether the Fates were, in major or minor measure, unkind to the appellant but upon whether the trial judge, when called upon to make a specific ruling, committed reversible error. The appellant, Eugene Michael DeLuca, was convicted by a Baltimore County jury, presided over by Judge A. Owen Hennegan, of conspiracy to distribute cocaine.

Upon this appeal, he raises the following five contentions: 1. That Judge William R. Buchanan, Sr. erroneously refused to require the State to reveal the identity of a confidential informant; 2. That the State unconstitutionally suppressed exculpatory evidence in contravention of Brady v. Maryland; ³⁹⁹ 3. That the State’s use of testimony unwittingly elicited by defense counsel because of the alleged Brady violation, exacerbated the prejudice; 4.

That the errors referred to above were not harmless; and 5. That Judge Hennegan erroneously prevented the appellant from offering character and expert witnesses to show that the appellant had no propensity to commit the type of crime for which he was convicted. Four of the appellant’s five contentions revolve around the allegedly erroneous failure of the court to require the State to disclose the identity of a confidential informant, known as NRI 924. The whole controversy swirling about this informant is a tempest in a teapot.

It deals with events so remotely situated on the far-flung periphery of this case as to be virtually meaningless. The criminal events in this case all took place between August 3 and August 14, 1985. Four persons were ultimately indicted for conspiracy to import cocaine into the State of Maryland and to distribute it. The “kingpin” of the operation in Baltimore County was Roy Calhoun.

James Skeens was Calhoun’s supplier, located in Dania, Florida. Dorsey Culp was the courier, who drove from Baltimore County to Florida at Calhoun’s request, picked up the cocaine from Skeens, and delivered it to Calhoun back in Baltimore County. The appellant, Eugene DeLuca, was at the very least a major purchaser from Calhoun and apparently helped to finance the purchase in Florida. The initial investigation, involving the confidential informant, focused only on the drug-related activities of Roy Calhoun.

The initial investigation was not aware of, and therefore not aimed at, the courier Culp, the Florida supplier Skeens, or the appellant. The initial investigation took place months before the critical dates of August 3 to August 14, 1985. A 17-page debriefing of NRI 924 was a major factor in persuading Judge James S. Sfekas to authorize the installa ⁴⁰⁰ tion of a wiretap on the telephone of Calhoun during the month of August, 1985. The confidential informant had been aware of drug-related activities on the part of Calhoun and numerous other persons from late in 1984.

Most of the informant’s observations were focused on Calhoun and upon activity in or around Signatures Bar in Baltimore County, where the informant either worked or was a regular patron. The informant was not privy to any activity other than that which took place at Signatures Bar. All of the evidence of crime against the appellant came from seven intercepted conversations picked up by the tap on Calhoun’s telephone line between August 3 and August 14; from three related surveillances, two in Baltimore County and one in Florida, on August 12 and 13; and from the search and seizure of Culp’s automobile on August 14, as it was returning to Baltimore County from the Florida “pick up.” The confidential informant was not remotely involved in any of the events of August 3 to August 14. Once he had furnished the information that led to the issuance of the wiretap order, the informant dropped out of the picture.

It was the wiretap itself that led to the involvement of Skeens, Culp, and the appellant. A review of the State’s case on the merits of guilt or innocence reveals how utterly immaterial the confidential informant was to the crime charged and proved. The first intercepted conversation, at 8:43 P.M. on August 3, was between Calhoun in Baltimore County and Skeens in Florida. Part of the agreed-upon procedure for the payment of money to Skeens by Calhoun was for Calhoun to turn the money over to Skeens’ daughter, Linda Becker.

It was arranged for Linda Becker to visit Calhoun’s residence on the following day, August 4, for a pickup of “that money.” In turn, it was arranged that Dorsey Culp (referred to in the telephone conversations as “the Big D”) would “make a run” to Florida during the next week to pick up a quantity of cocaine. ⁴⁰¹ The second intercepted conversation, at 9:59 P.M. on August 6, was between Calhoun and Culp. Calhoun asked and Culp agreed to “make a run” to Florida. It was arranged for Culp to leave Maryland for Florida on Monday, August 12. Calhoun also advised Culp that Calhoun had asked for “two extra” kilos of cocaine for Culp’s personal distribution.

The third intercepted call, at 4:39 P.M. the following day, was between Calhoun and the appellant. It was agreed that Calhoun and the appellant would meet at a designated parking lot in Baltimore County on Monday, August 12. The appellant was initially surprised that the Florida “run” would not take place before August 12. In the course of that conversation, the appellant inquired, using indirect references characteristic of all of these conversations, whether Calhoun had in recent days been receiving any unwarranted attention from the Baltimore County police.

A fourth intercepted conversation, at 6:31 P.M. on August 9, was between Calhoun in Baltimore County and Skeens in Florida. Calhoun confirmed that Culp would be leaving for Florida on Monday, August 12. Skeens confirmed that Culp would return with “five plus” kilos of cocaine. There was a further discussion between Calhoun and Skeens as to financing.

The pace of activity picked up perceptibly on Monday, August 12. The police staked out the agreed-upon rendezvous point between the appellant and Calhoun. The appellant arrived at approximately 11 A.M., left his vehicle, approached Calhoun and shook his hand and then returned to his vehicle. The appellant unlocked the trunk and removed therefrom a brown paper bag, similar to a grocery bag, which appeared to be three-quarters full with the top folded down.

The appellant entered Calhoun’s vehicle carrying the bag and left the car a short time later without the bag. The appellant then left the rendezvous point. A second surveillance, approximately two hours later, observed Calhoun driving to Culp’s residence. Calhoun ⁴⁰² removed from the trunk of his automobile a brown paper shopping bag with string handles.

He entered the Culp residence with the bag. After a trip by both men from the residence to Culp’s vehicle, in the course of which something was placed in the trunk of that vehicle, both men reentered Culp’s house. Calhoun left the area at approximately 1:45 P.M., carrying nothing. Within five minutes, Culp entered his vehicle and drove away.

A surveillance team followed him onto 1-95 and observed him headed southbound toward Virginia. At 5:05 P.M. on that same day, Calhoun called Skeens in Florida. He advised Skeens that Culp was “on the road.” Calhoun informed Skeens that Culp was carrying enough money for five kilos. Skeens replied that Culp would receive seven or eight kilos. [The difference may have been money already delivered by Calhoun to Skeens’ daughter on August 4].

Further reference was made to “a man as carrying part of the load,” which was interpreted by Detective Charles J. Herring, who served as the interpreter for all of these conversations, to mean that the appellant was financing part of the purchase and expected, in turn, to receive a quantity of the cocaine. Another Baltimore County detective, on temporary assignment to Florida, observed Culp arrive at Skeens’ residence in Dania, Florida, at 10:10 A.M. on August 13. He was observed fumbling with shopping bags in the trunk of his car. At approximately 5 P.M., Culp was seen leaving Skeens’ residence carrying a small, leather-like pouch and a shopping bag.

At approximately 8 P.M., he left for good. He was followed to 1-95 by a surveillance team, which observed him head off in a northbound direction. On the following day, August 14, various Baltimore County surveillance teams were watching northbound 1-95 in both Virginia and Maryland. One of those teams picked up Culp, heading northbound, at shortly before 5:30 P.M. Culp was stopped and arrested just before entering the Harbor Tunnel.

His automobile was searched pursuant to a warrant. Eight individually wrapped packages of a white pow ⁴⁰³ dery substance, later determined to be cocaine, were removed from the car. At approximately 5:59 P.M., the police intercepted a telephone call between Calhoun and Skeens. Calhoun was concerned that Culp had not yet arrived and called to confirm the time of his departure from Florida.

Skeens informed Calhoun that Culp had left on time and that he had “got eight.” Forty-five minutes later, another call was intercepted between Calhoun and the appellant. The appellant wanted to know whether Culp had yet returned from Florida. Calhoun responded that he had contacted Skeens and that everything went “all right on the other end.” Apparently because investigation was ongoing, the indictment against the appellant and his codefendants was not handed down until June, 1986, almost one year later. DISCLOSURE OF INFORMANT NOT REQUIRED Yet another year went by before the extensive pretrial hearing of July 8, 1987 before Judge Buchanan.

It was there that the appellant argued so strenuously about the need to know the identity of NRI 924. We agree with Judge Buchanan that such disclosure was not required under either federal or Maryland law. The informant had nothing to do with the merits of guilt or innocence. The conspiracy case against the appellant was based exclusively upon the surveillance and the wiretaps executed from August 3 through August 14, 1985.

The appellant relies primarily upon Roviaro v. United States, 353 U.S. 53 , 77 S.Ct. 623 , 1 L.Ed.2d 639 (1957). The Supreme Court first discussed the general nature of the “informer’s privilege,” at 353 U.S. at 59 , 77 S.Ct. at 627 : “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____ The purpose of the privilege is the ⁴⁰⁴ 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.” (Citations omitted). The Court then discussed the circumstances under which the privilege must yield to the defendant’s need to know: “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 the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” 353 U.S. at 62 , 77 S.Ct. at 628-29 . Although it makes no difference whatsoever to the outcome of this case, we feel constrained to point out to the appellant that Roviaro , although a Supreme Court case, deals not with binding constitutional law but involves rather the Supreme Court’s supervisory power over the lower federal courts. We note this only because Roviaro is presented to us uncritically as if it were constitutionally binding.

In reviewing a conviction from a state court, the Supreme Court in McCray v. Illinois, 386 U.S. 300 , 87 S.Ct. 1056 , 18 L.Ed.2d 62 (1967), distinguished the two very different capacities in which the Supreme Court sits, pointing out, at 386 U.S. 309 , 87 S.Ct. at 1061 : “This Court, therefore, has the ultimate task of defining the scope to be accorded to the various common law evidentiary privileges in the trial of federal criminal cases____ This is a task which is quite different, of course, from the responsibility of constitutional adjudication. In the exercise of this supervisory jurisdiction the Court had occasion 10 years ago, in Roviaro v. United States ... to give thorough consideration to one aspect of ⁴⁰⁵ the informer’s privilege, the privilege itself having long been recognized in the federal judicial system.” (Citations omitted) (Footnote omitted). In dealing with the non-necessity to disclose the identity of the informant in the McCray case itself, the Supreme Court noted that where disclosure is not required even under the federal evidentiary rules, a fortiori, it is not required as a matter of constitutional law: “In sum, the Court in the exercise of its power to formulate evidentiary rules for federal criminal cases has consistently declined to hold that an informer’s identity need always be disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause for an arrest or search. Yet we are now asked to hold that the Constitution somehow compels Illinois to abolish the informer’s privilege from its law of evidence ____” 386 U.S. at 312 , 87 S.Ct. at 1063 .

Having established that Roviaro is not constitutionally binding, we note that it is nevertheless persuasive and the Maryland courts have generally treated the informant privilege in essentially the same way as have the federal courts. In Roviaro , the decision was that the informant privilege had to yield, on balance, to the need for the defendant to know the identity. Critical to that decision was the fact that the undercover informant in question “had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged.” 353 U.S. at 55 , 77 S.Ct. at 625 . This became an established criterion under Maryland law.

In McCoy v. State, 216 Md. 332 , 140 A.2d 689 (1958), the Court of Appeals held, at 216 Md. at 336-337 , 140 A.2d 689 : “Ordinarily, the State has a privilege of non-disclosure and is not required to divulge the name of a person who furnishes information of violations of law to an officer ⁴⁰⁶ charged with enforcing the law. There are several exceptions to the general rule. One exception, with which we are concerned in this case, is applied whenever the informer was an integral part of the illegal transaction____ There are authorities that hold that an accused will be denied his constitutional rights if he does not know the informer, who was an integral part of the illegal transaction, and expressly makes a proper demand for the disclosure of his identity. In Roviaro v. United States, 353 U.S. 53 [ 77 S.Ct. 623 , 1 L.Ed.2d 639 ] (1957), the petitioner was convicted of an illegal sale of narcotics to one ‘John Doe.’ The defendant demanded the identity of the alleged informer, and there was no indication that the defendant, at the time of trial, was aware of the identity of the informer.

The government’s refusal to disclose the identity was upheld by the trial court, but the Supreme Court ruled that this was prejudicial error.” (Footnote omitted) (Emphasis in original). See also Drouin v. State, 222 Md. 271 , 160 A.2d 85 (1960); Gulick v. State, 252 Md. 348 , 249 A.2d 702 (1969). In Nutter v. State, 8 Md.App. 635 , 262 A.2d 80 (1970), Judge Orth undertook a thoroughgoing analysis of the informant privilege in Maryland. He pointed out that even being a witness to the crime itself does not necessarily compel disclosure and that the word “material” as a qualifier for “witness” has in this context “a meaning more restrictive than its usual meaning”: “We believe that if an informer is a participant, accessory or witness to the crime it is a factor to be considered in determining whether his identity is necessary and relevant to a fair defense.

And we feel that ‘witness’ as used in Gulick means- a material witness, in the sense that his testimony is important to a fair determination of the cause. It is then that his identity becomes necessary and relevant to a fair defense. Thus in this context ‘material’ may be said to have a meaning more restrictive than its usual meaning. So, although an eyewitness to a crime is clearly a ‘material’ witness as that word is ordinarily ⁴⁰⁷ used, if he is an informer, simply observing an illegal transaction but not participating in it, the fact that he observes the transaction does not necessarily make his possible testimony so important as to compel disclosure of his identity in the face of the rationale of the nondisclosure privilege.

Donigan & Fisher, cited in support of the statement in Gulick , said, ‘When the identity of an informer becomes material to the establishment of a defense, the court will order its disclosure.’ They quoted Roviaro v. United States, supra, in support thereof, and in Roviaro the Government’s informer was the sole participant, other than the accused, in the transaction charged and was the only witness in a position to amplify or contradict the testimony of government witnesses. Thus it was clear, and the Court so found, that the informer was a material witness, his possible testimony being ‘highly relevant and might have been helpful to the defense.’ 353 U.S. at 63-64 [ 77 S.Ct. at 629 ]. Donigan v. Fisher concluded, pp. 215-216: ‘Thus where the informer is an active participant in the illegal activities disclosed by him, his actions and identity can become part of the res gestae and concealment of his identity might hamper the accused in making his defense by depriving him of the testimony of a material witness.’ ” 8 Md.App. at 639-640 , 262 A.2d 80 (Emphasis in original). In Hardiman v. State, 50 Md.App. 98 , 436 A.2d 923 (1981), Judge Lowe reviewed the Maryland and federal law and concluded that the decision to compel disclosure is one within the sound discretion of the trial court: “In Maryland, the prosecution has the privilege of withholding from disclosure the identity of persons who furnish information to police officers concerning the commission of crimes.

Nutter v. State, 8 Md.App. 635, 636 [ 262 A.2d 80 ] (1970). The privilege is not absolute. Whether the disclosure, once demanded, is to be compelled is within the sound discretion of the court. Gulick v. State, 252 Md. 348, 354 [ 249 A.2d 702 ] (1969).

Such ⁴⁰⁸ exercise of discretion calls for a balancing of the public interest in protecting the flow of information to the police against the individual’s equal, if not predominant, right to a fair defense on the merits. Roviaro v. United States, 353 U.S. 53, 62 , [ 77 S.Ct. 623, 629 , 1 L.Ed.2d 639 ] (1957); Franks v. Delaware, 438 U.S. 154 [ 98 S.Ct. 2674 , 57 L.Ed.2d 667 ] (1978).’’ 50 Md.App. at 99 , 436 A.2d 923 . Applying that body of law, we have no hesitancy in holding that Judge Buchanan did not abuse his discretion in this case in refusing to compel the disclosure of the identity of the informant. The merits of the case of conspiracy against the appellant and others involved conduct, revealed by surveillance and wiretaps, that occurred during the month of August, 1985.

The informant was not remotely involved, as participant or witness, in any of those events. The role of the informant, rather, was to contribute to the probable cause for the issuance of the wiretap order. The informant’s observations, as we have already discussed, focused almost entirely upon Calhoun and upon the activity that transpired in or around Signatures Bar. Nothing reported by the informant involved the appellant at all.

Under the circumstances, there was no obligation to disclose the identity of the informant here. The appellant was groping for negative evidence of no more than fanciful relevance — the fact that the informant, in his narrations to the police, had not mentioned the appellant. It was never suggested that the informant possessed intimate knowledge of the entire conspiratorial apparatus. Of the key co-conspirators ultimately indicted, most of them had never been mentioned by the informant.

We see no abuse of discretion on the part of Judge Buchanan in ruling that disclosure was not compelled. DUTY TO DISCLOSE UNDER BRADY v. MARYLAND: A NON-CONTENTION The appellant’s second “contention” turns out not to be a cognizable contention at all. As the second of the “Ques ⁴⁰⁹ tions or Issues Presented” in the Appellant’s Brief, there appears the following: “Whether failure by State to reveal alteration in informant’s characterization of defendant, coupled with misleading indications by State, led unaware defendant to introduce, through State’s witness, prejudicial evidence as to informant’s characterization of defendant?” Even if that question were answered in the appellant’s favor, it would not yield reversible error. It speaks only of a failure by the State and not of any failure by the trial judge.

As we stated earlier, only the judge can commit reversible error. Even if the State were grievously at fault as alleged, that would do no more than lay the predicate for possible error by the trial judge. Before it can constitute reversible error, misconduct by the State must be translated into misconduct by the trial judge in the form of, for instance, 1) a failure to compel the State to reveal information; 2) a failure to strike an answer from the record and to instruct the jury to disregard it; 3) a failure, then or later, to give a curative instruction to the jury; 4) a failure to give a defendant a continuance to prepare for untimely discovered material; 5) a failure to declare a mistrial at the defendant’s request; 6) a failure to grant a new trial at the defendant’s request, etc. The Argument in ostensible support of this “Question or Issue” consumes ten pages of the Appellant’s Brief. We have scrutinized it line-by-line and nowhere in it do we find any reference to any specific action requested of the trial judge and erroneously not taken by him.

There is a narrative statement as to how appellant’s counsel was unwittingly beguiled into asking a question that yielded an unexpected answer. There is great chagrin over the failure of the State to warn appellant’s counsel that such an answer might be forthcoming. There is an extended discussion of the constitutional duty to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), and its progeny. ⁴¹⁰ Nowhere, however, are we pointed to a particular ruling of the trial judge that was allegedly erroneous. We can, to be sure, figure out several rulings that the appellant might have in mind.

We will not, however, undertake to write the appellant’s brief for him or to answer questions that have not been asked. There is one standard of review, for instance, that would be appropriate for assessing the failure to declare a mistrial. Quite a different standard of review, however, would be brought to bear upon the failure to grant a new trial. Is either issue before us?

Are both issues before us? We are not going to set out in a vacuum to answer all possible questions that the appellant might have raised but did not. INTERLUDE Even without reference to a specific contention, some explanation of this comedy of errors is called for because it so pervades the entire appeal that none of the actual contentions are intelligible without some understanding of how the miscommunication came about. The affidavit offered in support of the application for a wiretap on the telephone of Roy Calhoun included 17 pages of information furnished to the police by the confidential informant known as NRI 924.

The confidential informant was himself (or herself) a user of cocaine. The informant first became aware of a drug-trafficking organization involving Calhoun and numerous other persons in the latter part of 1984. The information was passed on to the police by the informant in the early part of May, 1985. Significantly, the informant’s observations all centered about activities that occurred at Signatures Bar, located at 825 Taylor Avenue in Baltimore County.

It is clear that the informant was either an employee or a regular habitué of Signatures. The informant was familiar with the ownership and the management of Signatures. The informant did, to be sure, mention some 37 persons involved with the narcotics activity centering on Signatures ⁴¹¹ Bar. What was described was a large-scale distribution center with Calhoun as a major supplier and with half-a-dozen or so other persons, all somehow associated with the management or ownership of Signatures, operating as middle level distributors.

A number of individuals, who would come in and out of Signatures, were described as sub-distributors working for one or another of the higher level distributors. The appellant was never mentioned by the informant. Neither, for that matter, was James Skeens, the Florida supplier, nor Dorsey Culp, the courier. The very existence of these persons was only discovered through the wiretaps on Calhoun’s telephone.

Indeed, the conspiracy that was charged and which was the basis for the conviction in this case was a conspiracy involving only the appellant, Calhoun, Skeens, and Culp. It was a conspiracy that allegedly took place between June 15 and August 14, 1985, a period of time that did not even begin to run until well after the events described to the police by the confidential informant. It was a conspiracy, moreover, to bring cocaine into the State of Maryland. It had nothing to do with the use or distribution of drugs at Signatures Bar.

What seems clear is that there were arguably two separate conspiracies and the only overlap between them was the person of Roy Calhoun. It was his involvement with distributing drugs out of Signatures Bar that led to the order for a wiretap on his telephone. The wiretaps, however, revealed a new and different conspiracy, one involved with the August 12 to August 14 importation of cocaine from Florida. This new conspiracy existed during a different time period, was designed to further a different criminal purpose, and involved a different set of co-conspirators.

Whether dealing with two separate conspiracies or, for that matter, with two separate links of the same “chain conspiracy,” no one would have expected the confidential informant to know about or to mention the very existence of the appellant or of James Skeens or of Dorsey Culp. The appellant, however, perhaps because he was bereft of any ⁴¹² other defense, somehow came up with the idea that this lack of knowledge by the confidential informant was of great significance. Things went downhill from there. An omnibus motions hearing was conducted by Judge Buchanan on July 8, 1987.

Five separate motions were considered and the transcript of the total hearing consumed 64 pages. The appellant’s motion to require the State to reveal the identity of the confidential informant was the fourth of the five motions considered and consumed I8V2 pages of transcript. The so-called assurances or stipulations made by the State and now relied upon, almost obsessively, by the appellant, were all contained within one limited bit of argument by the State and involve a bare one-and-a-half pages of transcript. We report them here in some detail because we believe the appellant has taken them to be, and has characterized them in brief and argument as, something far beyond what they really were.

The context for the State’s argument is all-important. The appellant had just been arguing strenuously that the failure of the confidential informant even to mention the appellant in the course of a 17-page debriefing had exculpatory significance. The State was responding that for all of his knowledge, the confidential informant was privy only to a part of the larger criminal activity, that centering on and emanating from Signatures Bar. The State was arguing that the appellant had nothing to do with Signatures Bar and, therefore, would never have swum into the ken of the confidential informant.

Approaching the critical issue of necessity for the disclosure of the informant’s identity, the State, simply by way of logical argument, was making the point that the appellant did not need to compromise the identity of the informant in order to establish the simple fact that the appellant was not involved in any of the activities at Signatures Bar. The State pointed out that there were two readily accessible alternative avenues for developing that fact. One was to offer the 17-page fragment from the application for the wiretap order on Roy Calhoun. The fragment would speak ⁴¹³ for itself in disclosing that the appellant was never mentioned within it.

The other alternative would be to call the investigative officers who conducted a number of surveillances on Signatures Bar. They would be able to testify that during the entire period of their surveillance, the appellant was never seen in or around Signatures. It is clear to us that the State’s reference to the lack of knowledge about the appellant by the informant refers to the only relevant time period then before the court — the observations made by the informant at Signatures Bar and passed on to the police, which observations formed part of the basis for the wiretap order. It was in this obvious context that the State argued that the 17-page recitation spoke for itself.

The reference to other officers, moreover, was not, as the appellant now characterizes it, to the investigators of this case generally but to the officers who conducted the surveillances on Signatures Bar specifically, the results of that surveillance also forming a part of the application of the wiretap order on Roy Calhoun. The critical part of the State’s argument was: “Mr. Purcell: ... NRI 924 doesn’t know anything about this defendant. Let me tell you what NRI 924 knew about____ The Court: That is what he is saying.

Mr. Purcell: He is saying — right, he can ask the investigators that, he can put this affidavit into evidence if he wants through the person who was the affiant, my affiants. 924, let me tell you, was a person who worked or, I don’t know what they did, somebody who used to hang out at Signature’s bar. Signature’s bar is when we first linked up with Mr. Roy Calhoun, and for some reason he or she became an informant. This person — I will bring Detective Herring in to tell you was an intelligence person only, never witnessed anything, was not present at any arrests, knows nothing about this defendant. What that person told the police about was Signature’s bar, what they saw Roy Calhoun doing at Signa ⁴¹⁴ ture’s bar.

The defendant evidently never went there. Now, the defendant, his attorney that is, can ask that to any number of surveillance officers, ‘Isn’t it true Calhoun worked at Signature’s bar or operated out of there, and isn’t it true you never once saw him there?’ ‘Right, true.’ Good. He has made his point. Why does he need 924 to say that?

(Emphasis supplied).” The State made no reference to calling an investigating officer and asking him whether the informant ever at any time, then or later, had any knowledge of this appellant. The representations were far more limited. The State claimed simply that there were two alternatives to calling the informant as a witness to establish the limited fact that as of early May, 1985, the appellant was not involved in the activities centering around Signatures Bar. One alternative was to offer the 17-page fragment from the affidavit.

The other was to call the officers who conducted the surveillance on Signatures. The State’s argument concluded: “My point is that he can get whatever information, whatever little help [that] can be gotten through other sources. But most importantly ... he or she never witnessed the defendant doing anything. And if that is the only point the defense wishes to make, he can make that through the surveillance officers or through this list of papers we are all looking at right now.” Judge Buchanan’s ruling that disclosure was not required was clear-cut.

It was not hedged with contingencies about alternative ways of developing the informant’s lack of knowledge about the appellant. It was based upon the simple principle that the informant was not a witness to nor an active participant in the criminal events which were the gravamen of the offense charged: “The Court: Of course, the State is privileged to withhold the disclosure of an informant’s identity and to further protect the public interest and the effective law enforcement. And that is Jones v. State [ 56 Md.App. 101 , 466 ⁴¹⁵ A.2d 895 (1983) ]. 1 However, I recognize that the privilege is not absolute. However, the defense has failed to show me by a preponderance of the evidence that the discovery concerning the informant is necessary and relevant to a fair defense.

So your motion is denied.” (Emphasis supplied). We note that Judge Buchanan’s ruling was based in part upon his conclusion that the entire line of inquiry was not relevant. We totally agree with that conclusion. Permeating the atmosphere of this case was, with the single exception of the appellant, the universal belief of everyone else concerned — the prosecuting attorney, the police to the extent they even thought about it, the hearing judge, and ourselves —that the line of inquiry was so much irrelevant nonsense.

That issue having been disposed of, Judge Buchanan moved on immediately to the fifth and final issue before him at the omnibus hearing. The appellant alone remained obsessed by the imagined significance of the negative knowledge when everyone else had, with good cause, forgotten it. That obsession came back to haunt him when he took a “leap of faith” in cross-examining a police witness, without having interviewed that witness, and was surprised by the answer he received. As the appellant characterizes it, “the trial testimony did not ‘break’ well.” Detective Charles J. Herring was on the stand.

Without in any way restricting the question to the time period during which probable cause was being gathered for the wiretap application or restrict ⁴¹⁶ ing the question to NRI 924, the cross-examination, without benefit of any prior interview, proceeded: “Q: Isn’t it true that you don’t have any informants that ever mentioned Mr. DeLuca? A: That is not true. Q: This situation in any of your search warrants or so forth, affidavits, informants mentioned Mr. DeLuca as being a seller or purchaser of cocaine? A: Not at the time those affidavits were prepared.

Q: That was the basis on which the wiretap was gotten, is that correct? A: That is correct.” The door having been opened, the State, on redirect examination, sought to clarify Detective Herring’s earlier response by asking, “You are saying there are informants who would have indicated that Mr. DeLuca was involved in the distribution of cocaine?” Detective Herring answered in the affirmative and the inquiry proceeded no further. With a fervor bordering on constitutional paranoia, the appellant now insists that, by being “invited” and “encouraged” to ask the question of Detective Herring, he was “sandbagged” or lured into a trap either by the State’s sinister design or by its inexcusable negligence. We see no evidence of either.

The appellant’s claim that anything said by the State in the course of the argument before Judge Buchanan constituted an “invitation” or “encouragement” of him to question Detective Herring about the informant’s lack of knowledge is pure fantasizing. In two separate regards, the State’s argument before Judge Buchanan would fail so to qualify. First, there is the very nature or quality of the statements. Secondly, there is the matter of their content.

The State was involved simply in an argument over the limited question of whether the disclosure of the informant’s identity would be compelled. The State was not remotely involved in making a representation or entering into a stipulation as to what future trial testimony would ⁴¹⁷ be. That was not an issue before the court. Had the appellant then had any intention of treating a passing argument as a formal representation or a binding stipulation, some indication, by way of alerting the hearing judge and the State alike, would have been appropriate, such as: “The State has just made certain statements, Your Hon- or, and I would like the record to reflect them.

Let it be understood, if such be the case, that the State is formally representing to my client at this time that if thus and such a witness were called at trial and were asked thus and such a question, the answer to that question would be thus and such. Let the record reflect that the State is herein entering into such a binding stipulation.” Absolutely nothing of that nature was said at that time or at any other time, up to and including the cross-examination of Detective Herring. The State neither stipulated to nor represented anything by way of forthcoming trial testimony. The appellant is doubly foreclosed.

It is a cardinal tenet of trial practice neither to examine nor to cross-examine a witness blindly. There is no indication that any impediment was placed in the way of counsel’s interviewing Detective Herring before trial and clarifying what, if anything, Detective Herring knew about what, if anything, any informants knew about the appellant, including when they knew it and how they knew it. Ignoring the ordinary precautions, counsel simply took a risk at his peril. That is not the stuff of which appellate reversal is made.

Quite aside from the tenor of what the State said as being logical argument on another point rather than a representation as to future testimony, the appellant also took far too expansive a view of what was said. Even granting the appellant the pursuit of his irrelevant line of defense, the State posed, as alternatives to calling the confidential informant to the witness stand, 1) the offering of the pertinent part of the affidavit itself or 2) the calling of the police officers who conducted the surveillance on Signatures Bar. The affidavit would have revealed that the informant had ⁴¹⁸ not mentioned the appellant in the course of his 17-page resumé of activities. The surveillance officers, whose observations were also offered in support of the wiretap application, would have revealed that the appellant was never seen going into or coming out of Signatures Bar.

The State never suggested as an alternative, the calling of any investigative officers other than those conducting the surveillance or for any purpose other than reporting the results of the surveillance. It was also abundantly clear that the State’s argument referred to the absence of any knowledge of the appellant on the part of the confidential informant as of the time the wiretap application was obtained. The thrust of the State’s argument was that the informant was neither a witness to nor a participant in any of the criminal activity that would be proved at trial, but served only in “an intelligence capacity” by way of furnishing the background information to support the wiretap application. With respect to that absence of knowledge as of the time of the wiretap order, nothing ever changed.

The appellant would not have been surprised if he had confined his question to that time period. The State’s very argument as to the alternatives to the disclosure of the informant’s identity obviously are