Hardiman v. State

Lowe, J., delivered the opinion of the Court. Prologue 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 (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 (1969). Such 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 (1957); Franks v. Delaware, 438 U.S. 154 (1978).

The exercise of discretion is proportionately restricted by the significance of the disclosure to the accused’s ability to defend on the merits. If the informant merely informed, but did not witness or participate in the criminal act the judge’s discretion is relatively broad; however, even his decision to disclose is subject to appellate hindsight. See Gulick, supra. But when it is indicated upon demand that disclosure is necessary and relevant to a fair defense on the merits, the identity of the informer must be disclosed if that charge is to go forward.

Nutter, supra at 638 ; see also Gulick, supra at 354, 357 ; Drouin v. State, 222 Md. 271, 286 (1960). It is prejudicial error to withhold the identity of such undercover employees in the face of repeated demands for disclosure when the informer’s " 'possible testimony was highly relevant ...,’” as that which "'might have disclosed an entrapment ¹⁰⁰ or that an informant " 'might have testified to petitioner’s possible lack of knowledge of the contents of [a] package that he 'transported’.." McCray v. Illinois, 386 U.S. 300, 310 (1967), quoting Roviaro v. United States, 353 U.S. at 63-64 . The Instant Case In the case we review, Carl James Hardiman was convicted by a jury in the Circuit Court for Cecil County of possession and distribution of methamphetamine. The State’s evidence consisted solely of the testimony of an undercover police officer who testified that he had purchased an amount of methamphetamine from appellant at his home, after having been introduced to him by a confidential informant named "Tinker” or "Joe”.

According to the officer, Tinker simply introduced him to appellant, and the appellant negotiated and consummated the sale, after which both the officer and Tinker left appellant’s trailer home. Appellant’s defense was that he had been entrapped into the transaction by Tinker (or Joe), to whom he had been introduced previously. "Q On December 7, 1980, were you visited at your home by Officer William Alan Athas, or Athas and one other person known to you by the name of Joe in the late hours of the day? A Yes, sir.

Q O.K. Had you seen Joe before that date and time of his visit at your home with Officer Athas? A Yes, sir, I have. Q Where did you first come to meet Joe? A Well, I was introduced his being Tinker.

Q You knew him as Tinker? A Yes, sir. ¹⁰¹ Q O.K. And where were you introduced to him as Tinker? A By his brother George Keane supposed to have been. Q Supposed to have been?

A Yes, sir. Q When he introduced you to him, did you have any further contact with him socially or business-wise or how did you, your relationship with Joe develop? A I seen him a couple times.” He claimed that while he and Tinker were visiting a mutual friend, he accommodated Tinker by taking a package home with him. "Q Did there come a time when he asked you to do him a favor?

A Yes, sir. Q Where were you when this particular request was made of you? A At Danny Johnson’s. Q At Mr. Johnson’s home?

A Yes, sir. Q And what was it that Mr. or Joe or Tinker, whatever he chooses to call himself, asked you to do? A He said since you live in North East, could you bring this down to your house for me? Q And what is it that he was referring to when he said, 'Can you bring this down to your house for me?’ Was it, was it this item identified as State’s Exhibit No. 2?

A I don’t really know; it looks like a plastic bag to me. THE COURT: What did you say? MR. GOODRICK [Public Defender]: He said, 'It looks like a plastic bag to me.’ ¹⁰² BY MR.

GOODRICK: Q When you were asked by Joe to bring an item down to your house, did it look like this? A Yes, sir. Q Do you know what was in it? A No, sir, I do not.

Q But you did it, did you not; you did take it? A Yes, sir. Q And the item that you received, you received from whom? A I was given a package at Danny Johnson’s house.

Q By whom were you given it? A I guess it’s Tinker. I don’t really know; that’s what I was introduced. Q Tinker?

A You know to be — Q So, Tinker or Joe, whatever he wants to call himself, gave you that packet. What did he ask you to do with it? A He asked me could I bring it down to my house. Q And that house would be the one that you occupied, the trailer?

A Yes, sir. Q And you did that? A Yes, sir, I did. Q Did he tell you what he wanted you to do with it other than take it down to your house?

A He said he’d be there to pick it up.” According to appellant he did come by "to pick it up,” with the undercover officer in tow in a day or two. "Q He’d be there to pick it up and he did, in fact, come to your place, as you have testified already, on the 7th of February, did he not? ¹⁰³ A I can’t remember exact date, but he did come to my house. Q With the officer who was in this Court earlier today, Officer Athas? You remember seeing him?

A Yes, sir. Q Was he with him that time? A Yes, sir.” When appellant produced the packet, both Tinker and the officer "[c]hecked it out” after which appellant told them the price, which was coincidentally the same price to which the officer had previously testified. "Q And then what?

A And they checked it out and he said, 'How much is that? ’ And I says, 'It’s supposed to be $65.00.’ ” After having swum too far into rough waters, his counsel quickly helped him ashore: "Q Where did you get that figure? A Because that’s what I was told. Q Who were you told that by? A Tinker.

Q Tinker? A Yes, sir. Q Tinker said $65.00. When did he tell you that?

A The day at Danny Johnson’s. Q At Johnson’s? A Yes, sir.” The money was left on the table when the officer and Tinker left the trailer, apparently also to be subsequently delivered to Tinker. On cross-examination appellant addressed some of the more obvious implications arising from so peculiar a transaction.

"Q All right. And you’re saying that the $65.00, then, would have been his, is that what you are saying? ¹⁰⁴ A I guess so. Q But yet and you’re saying it was no conversation, here’s a man that’s supposed to own this, comes to your house and the buy is made from you. Can you explain that?

A I don’t guess he wanted this officer to know or something because he was at Mr. Johnson’s five or six times without him. Q I see. A I seen him there. Q But you didn’t say anything, 'Hey this is your $65.00,’ did you?

A No, sir, I did not. Q And you kept the money, didn’t you? A No, sir, I did not. Q When, well, they left without the money, the money was, remained in your house, is that, isn’t that what you’re saying?

A At the present time, yes, sir. Q And you say you took it up to this Johnson and gave it to him? A Yes, sir, the next day.” While it appeared from appellant’s testimony that he might have known Tinker well enough to have been entrusted with his possessions (as well as his money) and that Tinker had been to his home once or twice, "Q All right, but Tinker was not at your house before 9:00 on February the 7th? That night, that was the first time he was at your house was that night with Trooper Athas, is that correct?

A No, sir, he was there once or twice before with appellant denied knowing Tinker’s true identity. This trial testimony conformed with appellant’s pretrial proffers in, and on, his Motion to Compel Discovery of the undisclosed informant. Consistently he had proclaimed his purpose in demanding the informant’s name. As incredibly ¹⁰⁵ naive (or inherently unbelievable) as appellant’s story may make him appear, it is not our role on appeal, nor the trial judge’s on weighing the demand, to decide the credibility of a proffered defense submitted to assess the purpose of disclosure.

Appellant contended then, and contends now, that he was entrapped and his purpose in requiring the State to furnish him "the name and address of the confidential informer known as 'Joe’ or 'Tinker’ ” was to verify his version of the incident. Without Tinker’s tale, it would be appellant’s word, credibly crippled by prior convictions and an unspoken missing witness inference, against the word of an officer of the law. Tinker’s tale told as his own, appellant believes, would have vindicated him. We are in no position on appeal to say him nay for our role of factfinding upon review is severely limited.

See Jackson v. Virginia, 443 U.S. 307 (1979). Review of the record reveals that appellant clearly met his burden of showing that disclosure of the informant’s identity was necessary and relevant to a fair defense by proffer in furtherance of his demand for disclosure. Whittington v. State, 8 Md. App. 676, 678 (1970). There was nothing for the judge to balance on the suppression side of the scale as far as this record reveals.

No hearing was held on the Motion to Compel Discovery save only a colloquy between counsel and the court on the morning of trial. Despite appellant’s repeated proffers of the purpose of proving his entrapment defense, the State was never called upon to respond at a hearing with a reason for its denial of disclosure; although it had set forth three "reasons” in an unverified Answer to Motion to Compel Discovery. "1. The evidence as produced at the Motion to Suppress does not indicate in any way that the defendant was induced to commit the offense which he would not otherwise have committed. 2.

The State at the present time does not know the whereabouts of 'Joe’ AKA 'Tinker.’ 3. The testimony of 'Joe’ AKA 'Tinker’ is not material to the defense of the accused.” ¹⁰⁶ The first and third response are not reasons at all. They are conclusions; the first a non sequitur and the third a conjecture. If the testimony of Tinker was that which was proffered, it was certainly "material” regardless of how a factfinder might receive it.

The State’s second answer, if evidentiarily proven, may have been justified in