521 S.W.2d 481 | Mo. Ct. App. | 1975
This is an original proceeding in habeas corpus arising from a sentence for contempt entered against petitioner. We issued our order to show cause, stayed the commitment, ordered briefs and heard oral argument. We now order petitioner discharged.
David McClelland is a policeman in the Florissant, Missouri, police department assigned to narcotics investigation. In that capacity he was contacted by certain citizens who did not wish their identities known. They gave McClelland information, admittedly hearsay once-removed as to them, concerning a series of four deaths in the Potosi, Missouri, area which were allegedly the product of a narcotics war. They asserted that law enforcement officers in Washington County were involved and “on the take”, and stated that they, the informants, would not tell their story to the local police, Sheriff’s office or highway patrol, although they would tell it to the Attorney-General’s office. Although all four deaths had been treated as accidents by local authorities, it was the informants’ belief that they were in fact murders. There was additional information supplied including names of the alleged victims, alleged actual means of death, names of alleged prospective victims, and names of alleged known narcotics
McClelland prepared a written report of his conversation but did not identify the sources. This report was transmitted to his superior. By some method, not revealed by the record, this report reached the hands of the Prosecuting Attorney of Washington County. He then requested the Circuit Court to convene a grand jury to investigate the information contained in McClelland’s report. The request was granted and McClelland was called as a witness before the grand jury. He answered all questions put to him except when asked to identify his informants. He declined to do that, claiming an “informant’s privilege” and advancing the contention that revelation of informants’ names would make his law enforcement duties impossible to perform. He was brought before the Circuit Judge and ordered to answer the question of the identity of his informants before the grand jury. He returned to the grand jury room and again refused to answer. He was returned to the Circuit Court where he acknowledged his refusal. The Circuit Judge held him in contempt of court in the court’s presence and ordered imprisonment for 7 days. The petition for a writ of habeas corpus immediately followed.
Petitioner raises certain procedural grounds in an attack upon the judgment and commitment order, which if ruled favorably to petitioner would obviate temporarily the need for our decision on the underlying question of the scope of an “informant’s privilege”. We decline to decide the case upon procedural grounds for we regard the underlying question to be an important one and one which will probably require a decision eventually between these parties.
We deal here with “privilege”. The concept of privilege is an exception to the usual rule of courts that all evidence material, relevant and competent to a judicial proceeding shall be revealed if called for.
At one time in our history such absolutism was also recognized in those privileges accorded to protect the government itself.
We deal here with a privilege designed and intended for the protection of the government.
“It is a general rule of law that the duty rests on every citizen to communicate to his government any information he has of the commission of crimes against it, and to encourage such laudable conduct, the information thus given is a government secret and will not be disclosed.” United States v. Keown, 19 F.Supp. 639, 1. c. 641 (W.D.Ky.1937).
As stated by 8 Wigmore, Evidence, Chap. 85, Sec. 2374(f)(3) at 767-8 (McNaughton rev. 1961):
"The truth is that the principle is a large and flexible one. It applies wherever the situation is one where without this encouragement the citizens who have special information of a violation of law might be deterred otherwise from voluntarily reporting it to the appropriate official.”
The purpose of the privilege is fully met in this case and each of the limitations set forth above are present. The information was given to a police officer with the responsibility to investigate or prevent public wrongs. It was given by informants unknown to anyone except the police officer. McClelland refused only to supply the names of the informants; he fully testified to the communications from them.
The Prosecuting Attorney for Washington County contends no privilege exists in this case at all. Initially this is premised on the contention that McClelland is only a municipal policeman and therefore not an “agent of the state.” Municipalities are subdivisions of the state and their police forces are charged with the investigation and prevention of crime. Nor does the prosecutor’s parochial argument that McClelland has no business obtaining information about crimes in Washington County suffice to preclude the privilege. McClelland is involved in narcotics violation investigation. Traffic in narcotics and crimes resulting therefrom know no geographic boundary lines, local, county or state. The information furnished by the informants indicated that the crimes occurring in Washington County were directly connected to a narcotics ring in the St. Louis area. Such information was relevant to McClelland’s duties. Further the informants specifically refused to make such information available to local Washington County law enforcement officials, allegedly because of a belief that such officials were involved. It is probable that the information conveyed to McClelland concerning alleged serious crimes and future crimes in Washington County would never have come to the attention of Washington County officials at all had not the informants sought out McClelland under confidential conditions.
The prosecutor also suggests that no privilege exists because of a "pecking order” among law enforcement authorities. This is premised upon the oft-repeated judicial statement that the privilege belongs to the state, not the informant.
As heretofore mentioned, the privilege is a qualified one. While at one time the privilege was absolute, the courts have now recognized that there are occasions on which it cannot be invoked or enforced.
It is contended that it is the province of the trial judge to determine whether the privilege may be asserted. As with any privilege, it is the province of the trial judge to determine whether the facts establish the existence of the privilege and whether it has been waived. It is not the province of the trial judge to determine whether the privilege should be invoked except when the “fair trial of the defendant” qualification is involved.
Petitioner is ordered discharged.
. 8 Wigmore, Evidence, Chapt. 76, § 2192, (McNaughton rev. 1961).
. In re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080 (1895); State v. Bailey, 320 Mo. 271, 8 S.W.2d 57 (1928).
. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); United States v. Nixon, 418 U.S. 904, 94 S.Ct. 3193, 41 L.Ed.2d 1152 (1974); State v. Edwards, 317 S.W.2d 441 (Mo. banc 1958); State v. Cookson, 361 S.W.2d 683 (Mo.1962).
. Rex v. Akers, 170 Eng.Rep. 850 (1790).
. State v. Taylor, 508 S.W.2d 506 (Mo.App.1974).
. 8 Wigmore, Evidence, Chap. 85, Sec. 2874 (f), at 765-7 (McNaughton rev. 1961); Rovario v. United States, 353 U.S. 53, 1. c. 60, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); People v. Keating, 286 App.Div. 150, 141 N.Y.S.2d 562 (1955)[3].
. State v. Taylor, 508 S.W.2d 506 (Mo.App.1974), [5]; Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); In re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080 (1895).
. No contention is here made that McClelland lacked authority from his superiors to promise anonymity, or that his invocation of the privilege was fraudulent or in bad faith.
. See In re Quarles, supra, which states: “The right of a citizen informing of a violation of law, like the right of a prisoner in custody upon a charge of such violation, to be protected against lawless violence, does not depend upon any of the amendments to the constitution, but arises out of the creation and establishment by the constitution itself of a national government, paramount and supreme within its sphere of action.” 1. c. 536, 15 S.Ct. 1. e. 961.
. For a thorough discussion of the province, prerogatives and limitations of grand juries, see United States v. Calandra, 414 U.S. 338, 1. c. 346 and 353, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) which recognizes the availability of valid or recognized privileges before a grand jury.
. See footnotes 2 and 3, supra.
. See Roviaro v. United States, supra, 1. c. 61, 77 S.Ct. 623 and cases there cited; State v. Edwards, supra; State v. Cookson, 361 S.W.2d 683 (Mo.1962); State v. Taylor, supra.
. We need not and do not reach the question whether the prosecution may identify the informant without his consent.
. See Roviaro v. United States, supra, 1. c. 61, 77 S.Ct. 623; United States v. Keown, supra, 1. c. 646.
. Roviaro v. United States, supra; United States v. Nixon, supra.
. Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938); Roviaro v. United States, supra; State v. Edwards, supra, [4].
. We have found or been cited to only three cases involving the privilege as it relates to grand jury proceedings where the witness was a police officer or public official. Fischer v. Citizens Committee, 72 Misc.2d 595, 339 N.Y.S.2d 853 (Sup.Ct.1973); State v. Roe, 26 Ohio St.2d 243, 271 N.E.2d 296 (1971); Davis v. Circuit Court, 244 Ark. 142, 424 S.W.2d 149 (1968). In the first two the privilege was upheld. The Arkansas case apparently recognized the “fair trial” qualification also applied to grand jury proceedings. The Ohio case indicated the qualification might apply if the grand jury was investigating guilt of a specified party, but did not in a general inquiry, as is involved in the case before us. The New York case limited the qualification to trial, not grand jury proceedings. Considering the nature of grand jury proceedings, and the absence of a right to confrontation, we find the New York case more soundly reasoned.