Nutter v. State

Orth, J., delivered the opinion of the Court. I THE PRIVILEGE OF NONDISCLOSURE OF THE IDENTITY OF INFORMERS The Rule In Maryland the State has the privilege to withhold from disclosure the identity of persons who furnish information to police officers concerning the commission of crimes. This general rule was recognized in Drouin v. State, 222 Md. 271 and reaffirmed in Gulick v. State, 252 Md. 348 . “That the government has this privilege is well established, and its soundness cannot be questioned.” 8 Wigmore, Evidence (1961) § 2374, p. 762. Its purpose is the furtherance and protection of the public interest in effective law enforcement.

Roviaro v. United States, 353 ⁶³⁷ U. S. 53, 59. Professor Wigmore, characterized by the Supreme Court as “not known as an enthusiastic advocate of testimonial privileges generally,” McCray v. Illinois, 386 U. S. 300, 309 , noted that such a genuine privilege must be recognized and said, § 2374, pp. 761-762: “Communications of this kind ought to receive encouragement. They are discouraged if the informer’s identity is disclosed. Whether an informer is motivated by good citizenship, promise of leniency or prospect of pecuniary reward, he will usually condition his cooperation on an assurance of anonymity — to protect himself and his family from harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious prosecution actions against him.

The government also has an interest in nondisclosure of the identity of its informers. Law enforcement officers often depend upon professional informers to furnish them with a flow of information about criminal activities. Revelation of the dual role played by such persons ends their usefulness to the government and discourages others from entering into a like relationship.” Of course, the privilege applies only to the identity of the informer, 1 and not to his communication as such. And ⁶³⁸ the privilege is not absolute; it is limited by its underlying purpose.

The obvious qualification is that once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable. Roviaro v. United States, supra, at 60. 2 See McCoy v. State, 216 Md. 332, 337 . But the real exception to the rule may not be so obvious, but is just. It arises from the fundamental requirements of fairness.

The identity of the informer must be disclosed when it is necessary and relevant to a fair defense. Gulick v. State, supra, at 354 and 357. Or as the Court said in Drouin v. State, supra, at 286, disclosure is compelled “if the name of the informer is useful evidence to vindicate the innocence of the accused, lessens the risk of false testimony or is essential to a proper disposition of the case.” In McCoy v. State, supra, at 337, the Court stated the exception to be “whenever the informer was an integral part of the illegal transaction.” 3 The Court also said in Gulick v. State, supra, at p. 354: ⁶³⁹ “The cases universally recognize the exception to the nondisclosure privilege where the informer was a participant, accessory or witness to the crime. See McCoy v. State, 216 Md. 332 , 337 * * *; The Evidence Handbook, Donhgan & Fisher, (1965) Evidentiary Privileges § 7, pg. 214.” We do not think this is a separate exception, distinct from the exception described in the terms of necessity and relevancy to a fair defense.

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 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 ⁶⁴⁰ 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.” 853 U. S. at 63-64. Donigan & 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.” McCoy , also cited in Gulick , is not contrary to our interpretation.

There the exception was stated in terms of the informer being an integral part of the illegal transaction and Roviaro was discussed in support thereof. Lee v. State, 235 Md. 301 , supports our interpretation. In Smith v. Illinois, 390 U. S. 129 , the principal witness for the prosecution was a man who identified himself on direct examination as “James Jordan.” This witness testified that he had purchased a bag of heroin from the petitioner in a restaurant with marked money provided by two police officers. The officers corroborated part of his testimony but only this witness and the petitioner testified as to the crucial events inside the restaurant, and the petitioner’s version of those events was entirely different. “The only real question at the trial, therefore, was the relative credibility of the petitioner and this prosecution witness.” at 130.

On cross-examination the witness admitted that his real name was not “James Jordan.” Objection to inquiry as to his real name ⁶⁴¹ and address were sustained. The Court reversed, holding that under the standard of Alford v. United States, 282 U. S. 687 , the defendant was denied the right to confront the witnesses against him, guaranteed to him under the Sixth and Fourteenth Amendments of the federal constitution. The Court noted that its decisions in Roviaro and McCray were not relevant as in neither of those cases was the informer a witness for the prosecution. 390 U. S., note 8, at 133. It appears, therefore, that if an informer testified for the prosecution at trial, the State’s privilege of nondisclosure is not applicable and may not be invoked, yielding to the Sixth Amendment right of confrontation. 4 The Application of the Exception We think it clear that today the exception to the general rule of the State’s privilege of nondisclosure of the identity of an informer applies to the issue of guilt or innocence as distinguished from the issue of probable cause for a warrantless arrest or warrantless search, or for the issuance of an arrest warrant or search and seizure warrant.

Although in Drouin v. State, supra, the Court considered the exception with regard to probable cause for an arrest, that case was decided without the benefit of McCray v. Illinois, supra. In McCray the Court, pointing out that Roviaro involved the privilege “at the trial itself where the issue was the fundamental one of innocence or guilt,” and not on the issue of probable cause of an arrest or search, 386 U. S. at 309 , “made it crystal clear,” as we said in Mullaney v. State, 5 Md. App. 248 , note 4 at 254, “that there is no requirement, ⁶⁴² constitutional or otherwise, which compels disclosure of the informant’s identity on a hearing to determine the question of probable cause for an arrest or search.” And see Rollins v. State, 5 Md. App. 495, 498 . 5 In Gulick v. State, supra, the issue was not probable' cause for an arrest or search but the demand for disclosure concerned the identity of an individual who gave the law enforcement authorities a “tip” on the relevancy to the crime of an object already in the possession of the police. The Court held that disclosure of the identity of the informer was not required because it was not necessary and relevant to a fair defense. 252 Md. at 357 . The Invoking of the Exception The exception to the general rule of the State’s privilege of nondisclosure of the identity of an informer must be invoked by the defendant. “Even though a case is a proper one for disclosure, the court will not on its own motion require the government to reveal the source of its information; the defense must demand disclosure and, if it is refused, move to strike the related testimony or to dismiss the action, as circumstances indicate.” 8 Wigmore, Evidence (1961), § 2374, pp. 771-772.

And we think it clear from McCoy v. State, supra, that if the defendant fails to make demand for the name or identity of the informer at trial, he waives the right to such disclosure. The Court in McCoy considered this “an exception to the exception.” 216 Md. at 337 . Once demanded, whether disclosure is to be compelled is within the sound discretion of the trial court. Gulick v. State, supra, at 354. “The problem calls for a balancing of the public interest in protecting the flow of information against the individual’s equal, if not predominant, right to a fair defense.

The privilege of nondisclosure of the informer is not absolute, but it must not be withdrawn unless a necessity for the identity, and its rel ⁶⁴³ evancy to a fair defense, is demonstrated.” Id. at 357. “We believe that no fixed rule with respect to disclosure is justifiable. * * * 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.” Roviaro v. United States, supra, at 62. We note that the Court in Roviaro said that when the privilege must give way the trial court may require disclosure and, if the government withholds the information, dismiss the action. Id., at 61 . See Gulick v. State, supra, at 355.

Summary The State has the privilege to withhold from disclosure the identity of persons who furnish information to police officers concerning the commission of crimes. However, the privilege is not absolute. On the issue of guilt or innocence and upon demand by the defendant, the trial court may, in the exercise of its judicial discretion, compel such disclosure upon determination that it is necessary and relevant to a fair defense. Factors to be considered in ascertaining whether such disclosure is necessary and relevant to a fair defense include the nature of the crime charged; the importance of the informer’s identity to a determination of innocence, as for example, whether or not the informer was an integral part of the illegal transaction and the possible significance of his testimony ; and the possible defenses.

Whether the privilege must yield depends on the facts and circumstances of the particular case. But if the informer testifies for the State the privilege may not be invoked by it. II In Lewis v. United States, 385 U. S. 206 , Mr. Chief Justice Warren, speaking for the Court, noting that both the Government and petitioner “recognize the necessity for some undercover police activity and both concede that the particular circumstances of each case govern the ad ⁶⁴⁴ missibility of evidence obtained by stratagem or deception,” said, at 208-210: “Indeed it has long been acknowledged by the decisions of this .Court * * * that, in the detection of many types of crime, the Government is entitled to use decoys and to conceal the identity of its agents. The various protections of the Bill of Rights, of course, provide checks upon such official deception for the protection of the individual. * * * Were we to hold the deceptions of the agent in this case constitutionally prohibited, we would come near to a rule that the use of undercover agents in any manner is virtually unconstitutional per se.

Such a rule would, for example, severely hamper the Government in ferreting out those organized criminal activities that are characterized by covert dealings with victims who either cannot or do not protest. A prime example is provided by the narcotics traffic.” (citations omitted). This State has enacted legislation relating to narcotic drugs, Md. Code, Art. 27, §§ 276-306D; dangerous drugs, §§ 307-313; harmful inhalants, § 313A; depressant or stimulant drugs, § 313B and 313D; LSD, 313BA; amphetamines and barbiturates, § 313C; and other hypnotic drugs, Code, Art. 43, §§ 284-289. The statutes prescribe certain conditions to effect control of such drugs and proscribe certain acts with regard to them, making such acts crimes.

The validity of such legislation is firmly established. The right of the State to exercise such power was recognized by the Supreme Court in Minnesota ex rel. Whipple v. Martinson, 256 U. S. 41 as in the interest of the public health and welfare and reaffirmed in Robinson v. California, 370 U. S. 660 . Unlawful drug traffic is by its nature clandestine; its operations are carried on by stealth, and become apparent primarily through its victims.

But its victims are also criminals, not by reason of being addicts, Robinson v. California, supra, but, ⁶⁴⁵ because, notwithstanding their addiction, they are responsible for certain of their acts, even though stemming from their addiction, which are crimes, as for example, possession and control of a narcotic drug. Code, Art. 27, § 277. See Powell v. Texas, 392 U. S. 514 . Unlawful drug traffic requires a number of participants and a sophisticated organization.

Starting with the source of the drug, it then must be distributed, ultimately reaching the user. Along the way it passes through many hands but it is obvious that the farther from the user and the closer to the source the trail runs, the more difficult is the detection of the criminal agent. One “pusher” may sell to a number of addicts; one supplier may supply the drug to a number of “pushers;” one distributor may distribute the drug to a number of suppliers, and so on back to the original source. And even detection at the user echelon is difficult, for unlike the victims of most other crimes, the user himself, having violated the law, is loath to inform the authorities and rarely complains.

See Franklin v. State, 8 Md. App. 134 . Usually the State must act not only as policeman and prosecutor, but also as complaining witness to the crime. Thus, the great majority of the time, 6 the effective enforcement of the drug laws requires the assistance of informers who impart information to the police, often for reward. Ill THE INSTANT CASE Erwin Randolph Nutter (appellant) was found guilty at a court trial in the Criminal Court of Baltimore of having under his control, on 16 March 1968, the narcotic drug Cocaine.

He contends: (1) the trial court erred in refusing to require disclosure of the identity of an informer although admitting evidence as to the informer’s ⁶⁴⁶ activities, and (2) the evidence was not sufficient to sustain the conviction. At the start of the trial appellant expressly waived any objection to his arrest or to the search and seizure by which evidence was obtained, conceding that the search and seizure were valid. 7 Evidence adduced showed that appellant had been the proprietor of and a barber in the Ebony Barber Shop, located at 1524 Pennsylvania Avenue for about 20 years. Access to the shop from Pennsylvania Avenue was by a glass door leading into a small vestibule. There was a plate glass window overlooking Pennsylvania Avenue.

The shop consisted of a room 12 feet wide and 20 feet long. There were three barber chairs on the right side of the room in a line from front to back. For each chair there was a washbasin, located on the left side wall, on which wall there were also cabinets and a mirror. Chairs for customers awaiting service were along the left wall.

On 16 March 1968 the police searched the shop under the authority of a search and seizure warrant. At the time of the raid appellant was the only barber on the premises and he was in the front of the shop by the first barber chair. Several men were seated on the chairs along the left wall but no one was receiving tonsorial services. The washbasins serving’the first two chairs had apparently been recently used but the basin serving the third chair at the extreme rear of the shop had obviously not been used for some time.

It was a bowl type basin with two spigots and in the bowl was an accumulation of crushed up used paper towels, dirt and debris. The only contraband found in the shop was in this basin. No contraband was found elsewhere in the shop or on the person of any