Warrick v. State

MURPHY; Chief Judge. This case involves the denial of a motion to compel disclosure of the identity of a state confidential informer in a narcotics prosecution; and whether, where the accused asserts the defense of mistaken identification, it was error to conclude that the informer’s identity was irrelevant and that disclosure was therefore not compelled. I. In Brooks v. State, 320 Md. 516 , 578 A.2d 783 (1990), we set forth the law governing the scope of the State’s privilege to withhold disclosure of the identity of its confidential informers in criminal cases. The case now before us illustrates the need to repeat these relevant legal principles.

The purpose of the privilege is to further and protect the public interest in effective law enforcement. Roviaro v. ⁶⁹⁹ United States, 353 U.S. 53, 59 , 77 S.Ct. 623, 627 , 1 L.Ed.2d 639 (1957). In McCray v. Illinois, 386 U.S. 300, 308 , 87 S.Ct. 1056, 1061 , 18 L.Ed.2d 62 (1967), the Supreme Court, quoting 8 J. Wigmore, Evidence § 2374 (McNaughton rev. 1961), said: “ ‘Communications of this kind ought to receive encouragement. They are discouraged if the informer’s identity is disclosed....

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.’ ” The informer’s privilege is especially important “ ‘in the enforcement of ... narcotics laws, [since] it is all but impossible to obtain evidence for prosecution save by the use of decoys. There are rarely complaining witnesses.’ ” Lewis v. United States, 385 U.S. 206, 210-11, n. 6 , 87 S.Ct. 424, 427, n. 6 , 17 L.Ed.2d 312 (1966) (quoting Model Penal Code § 2.10, comment, p. 16 (Tent.Draft No. 9, 1959)). Accord McCray, 386 U.S. at 312 , 87 S.Ct. at 1063.

While the State’s interest in maintaining the anonymity of its informers is manifestly important, that interest is necessarily circumscribed by the defendant’s interest in a fair trial. In this regard, the Supreme Court held in Roviaro that the privilege is limited by fundamental fairness requirements when determining the guilt or innocence of the accused. “Where the disclosure of an informer’s identity, or of the contents of his communication, 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.” 353 U.S. at 60-61 , 77 S.Ct. at 628 . This is the applicable standard when determining whether the State’s privilege accedes to the defendant’s constitutional rights of due process and confrontation. United States v. Valenzuela-Bernal, 458 U.S. 858, 870 , 102 S.Ct. 3440, 3448 , 73 L.Ed.2d 1193 (1982).

See also Md.Rule 4-263(e)(2). ⁷⁰⁰ Roviaro did not impose any absolute rule of when an informer’s identity must be disclosed. Id. 353 U.S. at 62 , 77 S.Ct. at 628 . See also McCray, supra, 386 U.S. at 311 , 87 S.Ct. at 1062 . Instead, the Court required trial judges to balance the public interest in protecting the flow of information against the individual’s right to prepare a defense.

Roviaro, 353 U.S. at 62 , 77 S.Ct. at 628 . “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.” Id. The Court suggested three defenses for which an informer’s identity could be vital: entrapment, lack of knowledge of the contents of a package, and, as in this case, mistaken identity. Id. 353 U.S. at 64 , 77 S.Ct. at 629 . In Roviaro , the informer and the accused were the sole participants in a drug transaction, the testifying police officers only listened to the transaction or watched it from afar, the accused did not know the informer, and the defense was entrapment.

The Court, applying its balancing test, held that the informer’s name should have been released. In so holding, it noted that the informer’s “possible testimony was highly relevant and might have been helpful to the defense,” id. 353 U.S. at 63-64 , 77 S.Ct. at 629 , in part because he was the “only witness [other than the accused] in a position to amplify or contradict the testimony of government witnesses.” Id. at 64 , 77 S.Ct. at 630 . 1 Relying on Roviaro , we have interpreted the nondisclosure privilege to be inapplicable “whenever the informer was an integral part of the illegal transaction.” McCoy v. State, 216 Md. 332, 337 , 140 A.2d 689 (1958), cert, denied sub nom., McCoy v. Pepersack, 358 U.S. 853 , 79 S.Ct. 82 , 3 ⁷⁰¹ L.Ed.2d 87 (1958). We noted that “[t]he cases universally recognize the exception to the nondisclosure privilege where the informer was a participant, accessory or witness to the crime.” Gulick v. State, 252 Md. 348, 354 , 249 A.2d 702 (1969) . We have stressed that trial courts must apply the Roviaro balancing test in each case, regardless of the labels attached to the informer’s role.

Gulick, 252 Md. at 354 , 249 A.2d at 706 ; Drouin v. State, 222 Md. 271, 286 , 160 A.2d 85 (1960). Clearly, the practical application of the balancing test is more rudimentary in some cases. For example, the privilege ordinarily applies where the informer is a mere “tipster,” who supplied a lead to law enforcement officers but is not present at the crime, while disclosure is usually required when the informer is a participant in the actual crime. United States v. Brinkman, 739 F.2d 977, 981 (4th Cir.1984); Jones v. State, 56 Md.App. 101,110 , 466 A.2d 895 (1983).

The balancing test should be applied in all cases. As noted in Nutter v. State, 8 Md.App. 635 , 262 A.2d 80 (1970) , the key element is the materiality of the informer’s testimony to the determination of the accused’s guilt or innocence, balanced against the State’s interest in protecting the identity of the informer.

II

The petitioner, Dwight Warrick, was charged in the Circuit Court for Talbot County with distributing a controlled dangerous substance in violation of Maryland Code (1992 Repl.Vol.), Art. 27, § 286. At a jury trial in that jurisdiction, Maryland State Trooper Vones Jamison, Jr. testified that, on January 19, 1990, he was assigned to the Talbot County Narcotics Task Force. On that evening, he was on duty in an undercover capacity in the parking lot of a tavern known as Wetcher Whistle. Jamison said that he first saw a man, whom he later identified as Warrick, while standing approximately thirty-five to forty feet away from him.

Jamison testified that Warrick was then clad in a ⁷⁰² baseball cap, a full-length leather coat that covered his shirt, and dark jeans; and that he had a thin moustache that was connected to his beard. According to Jamison’s testimony, at approximately 9:15 p.m., he saw Warrick for the second time when he was introduced to him in the tavern parking lot. He said that Warrick was wearing the same clothing and that, after a short face-to-face conversation with him, he asked Warrick where he could purchase a quantity of crack cocaine. Warrick responded by producing a small container from his jacket pocket and pouring approximately ten to fifteen pieces of crack cocaine into his hand.

Warrick invited Jamison to select the piece that he wanted; Jamison did so and gave Warrick a $20 bill. Jami-son testified that on the night of the transaction, the parking lot was lighted by store and street lights and by lights from cars that were entering the lot. Jamison saw Warrick again on February 1,1990. He said that Warrick was then a passenger in a moving vehicle on the highway.

Shortly thereafter, Jamison pulled alongside of the vehicle in which Warrick was traveling. He waved to Warrick and Warrick waved in response. Subsequently, Warrick and his companion entered a road leading toward Cordova, Maryland. Jamison said that he met Warrick again that same day, spending approximately five minutes with him.

Later that day, Warrick was arrested. On cross-examination, the trooper was asked who had introduced him to Warrick on January 19 in the tavern parking lot. The prosecutor objected. In response, War-rick maintained that that information was relevant because “the identification of the defendant is the keystone in this case.” Warrick’s counsel stated that she wanted to know “who provided [the trooper] information that there was someone on the street named Dwight Warrick, to connect him with this man or with someone else.” She said that the only information contained in the report given to her by the State’s Attorney concerned a direct hand-to-hand sale; no intermediaries or confidential informants were mentioned in the police report.

At this juncture of the case, the court ⁷⁰³ asked, and the prosecutor acknowledged, that the person who introduced the trooper to Warrick was a confidential informant and that that information had not been provided to Warrick prior to the commencement of the trial. 2 Against this background the court sustained the prosecutor’s objection to the requested disclosure of the informant’s identity. It said that the name of the person who introduced the trooper to Warrick was not “particularly germane or relevant.” The court explained its ruling: “If this were a case where that person had performed some service or duty or action outside the presence of this Trooper in connection with this case, the Court would have a far more serious problem. But in this case, the only thing that this alleged third person did was allegedly done in the presence of both the Trooper and the defendant simultaneously. Therefore, his identification, his name, is totally irrelevant.

It doesn’t make any difference who he was as long as he was one of the several billion people on the face of the earth. And the Trooper’s testimony will stand or fall on its own weight.” Warrick’s further cross-examination of the trooper undertook to establish that several other men of Warrick’s approximate size and build frequented the neighborhood of the Wetcher Whistle. Warrick testified in his own behalf. He denied selling cocaine to the trooper or ever having seen him prior to pretrial proceedings.

He testified that two of his friends, whom he named, and who sometimes frequented the tavern, bore a resemblance to him. On rebuttal, Trooper Jamison testified that on February 1, when he encountered Warrick driving on the highway, one of Warrick’s named friends was driving the vehicle. ⁷⁰⁴ The jury found Warrick guilty of distributing cocaine, and he was sentenced to a term of imprisonment. The Court of Special Appeals, in an unreported opinion, affirmed the judgment. It held that Warrick’s bald assertion that the confidential informant may have supported his defense of mistaken identification was “mere conjecture about the relevance of the informant’s identification” and was an insufficient basis to compel disclosure.

In so holding, the intermediate appellate court said that the trial court had applied the Roviaro balancing test, as articulated by us in Brooks . In this regard, it noted that before denying the motion, the trial judge “had a bench conference, asked questions, heard arguments ...[,] considered what had transpired ... [and concluded] that the identity of the informant was unnecessary and not critical to a fair defense.” Warrick filed a petition for certiorari, which we granted, to consider his contention that the Court of Special Appeals departed from our holding in Brooks v. State, supra, when it denied his request for disclosure of the informant’s identity.

III

In Brooks , the petitioner was convicted of unlawful distribution of cocaine. The crime occurred when two undercover police officers drove onto a parking lot, accompanied by an informer. While seated in the car, the informer, who knew Brooks, called out to him. Brooks came over to the car and after some discussion with the undercover officers, Brooks agreed to obtain some cocaine for them.

Shortly thereafter, Brooks returned to the car with the cocaine and sold it to the officers. Almost two months later, Brooks was arrested as the seller. He asserted that he had not sold the cocaine and that the officers were therefore mistaken about the seller’s identity. Before trial, Brooks moved to compel disclosure of the informer’s identity, claiming that the informer’s testimony ⁷⁰⁵ was necessary to bolster his defense by undermining the officers’ identification of him as the seller.

The trial judge denied his motion, ruling that the informer was a mere “tipster,” and disclosure of his identity was therefore not required. The court did not balance the respective interests of the State and the defense, as required by Roviaro . We reversed the conviction and remanded for a new trial, holding that the trial judge erred in viewing the informer as a mere “tipster” and in concluding that this label relieved him of the obligation to apply the Roviaro balancing test. As in Brooks , the present case involves the use of a confidential informant to arrange an illegal sale of cocaine to undercover police officers in a parking lot.

In each case, the confidential informer introduced the officers to the seller. While the informer was present throughout the transaction in Brooks , it is not entirely clear from the record in this case whether the informer was present during the actual exchange of drugs for money. 3 We expressly rejected the State’s contention in Brooks “that the nondisclosure privilege applies when an informer merely points out or introduces a defendant to an undercover officer and is only a witness to, not a participant in, the illegal transaction.” 320 Md. at 525 , 578 A.2d at 788 . To adopt such a rule, we said, would ignore the application of the Roviaro balancing test. Id.

Manifestly, when an informer introduces an undercover officer to a suspected drug dealer for the purpose of facilitating a drug sale, the informer’s identification of, or failure to identify, the accused may constitute highly relevant testimony when, as here, and as in Brooks , a colorable dispute as to the ⁷⁰⁶ accused’s identity is presented in the case. As Roviaro teaches, 353 U.S. at 60-61 , 77 S.Ct. at 627-28 , the State’s nondisclosure privilege may be circumscribed where, in a mistaken identification case, the informer’s identity may be relevant and helpful to the defense or essential to a fair determination of the case. Because there is no absolute rule governing disclosure of an informer’s identity, trial judges must balance the public interest in protecting the flow of information against the individual’s right to present a defense. In this regard, as we earlier observed, striking the correct balance “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, 353 U.S. at 62 , 77 S.Ct. at 629 .

As we see it, the trial judge in the present case did not balance the respective interests of the State and the defense. Indeed, it appears that he simply concluded that because the evidence showed that the informer, the trooper, and Warrick were together in the parking lot, the informer’s identity was “totally irrelevant.” The trial judge seemingly ignored the possibility that Warrick sought the disclosure of the informer’s identity because he truly was misidentified by the officer as the seller, and was therefore not at the scene of the crime to know the informer’s identity. In these circumstances, it is hardly beyond reason that the informer, who knew the seller, might exonerate him. On the record before us, we are unable to say, as a matter of law, that disclosure of the informer’s identity was constitutionally required.

Because the State characterized the person who allegedly introduced the trooper to Warrick