*1 MONTANA, STATE OF Appellant, Plaintiff and BABELLA, ANNETTE Respondent. Defendant No. 88-524.
Submitted on Briefs Jan.
1989.
9,May
Decided
1989.
Marc Atty. Gen., Smith, Gen., Atty. Robert F.W. Asst. Helena, Deschamps, Atty., Friedenauer, Robert L. Craig Deputy Co. Atty., Missoula, plaintiff Co. appellant. Beccari, Defender,
J. Dirk Missoula, Public for defendant and respondent.
MR. JUSTICE Opinion WEBER delivered the of the Court. The District Court District, for the Fourth Judicial Missoula *2 County, dismissed charges against ap- this defendant. The State peals. We reverse.
The issue is: Did the District Court err in granting defendant’s motion which requested identity disclosure of the of confidential informants? 3, 1987,
On October Missoula law enforcement obtained a search Terry LaRoque. warrant to search the application home of The lengthy warrant was and contained information from several including Crimestoppers calls, sources reports, anonymous phone participant sales, drug in the and information from confidential in- application formants. specific reports recited instances in which given by by informants and callers had been verified law enforce- ment. Information obtained from the informants and other sources Terry linked the sale drugs LaRoque. of When the officers executed search warrant at the home of Terry LaRoque, Ms. Babella was found in Drugs, bed with him. va- rious items drug paraphernalia, cash, large and a amount of were pants found belonging bedroom and in to Ms. Babella. She subsequently was arrested. 19, 1987,
On October charging State filed an information Ms. Babella with possession the offense dangerous drugs with the sell, 45-9-103(1), intent to plead violation of MCA. Ms. Babella guilty 13, Later, not on November 1987. the defendant moved for disclosure of the State’s hearing confidential and a 17, on this motion was hearing held on June 1988. the State presented witness, police one officer Bill Wicks. He testified to facts which indicated identity produce that disclosure of a substan- tial risk produced of harm to the informants. The defendant no tes- timony. issue, parties The court ordered both to brief the and subse- quently identity ordered the State to disclose of the informants. refused, When the State charges against the court ordered the defendant dismissed. governmental
A entity may privilege claim the to refuse to disclose identity of its privilege confidential informants. This is not abso- lute but subject is balancing to a test enunciated in Roviaro v. United States (1957), 53, 623, 353 U.S. 77 S.Ct. L.Ed.2d 639. Roviaro the Court stated:
“We
respect
believe that no fixed rule with
justifia-
to disclosure is
problem
ble. The
balancing
public
one that calls for
interest
in protecting the
flow of information
the individual’s
prepare
proper
his defense. Whether a
balance renders nondisclo-
sure
depend
erroneous must
particular
circumstances of each
case, taking into
possible
consideration
charged,
the crime
de-
fenses,
possible
significance
testimony,
of the informer’s
62,
other relevant factors.”
This was codified Montana in 1977 the enactment M.R.Evid., of Rule 502 which states: “(a) Rule privilege. The United States or a state or subdivision thereof privilege has a identity person refuse to disclose the of a who has furnished relating information assisting to or in an investi- gation possible of a violation of a law.
“(b) Who claim privilege be claimed appropriate an representative public entity to which the in- *3 formation was furnished.
“(c) Exceptions and limitations.
“(1) Voluntary disclosure; informer a privilege witness. No exists under this if identity rule the in informer or his interest the subject matter of his communication has been disclosed to those who would have cause by to resent the communication a holder of privilege by the action, or the informer’s if ap- own or the informer pears as a public witness for entity. the
“(2) Testimony on appears relevant issue. If it in the case that an may informer give testimony be able to any relevant in to issue a criminal case or to a fair determination of a material on the issue in merits a civil public entity party, case to which a is a and the public entity privilege, public invokes the give the court shall the entity opportunity an to determining show facts relevant whether can, fact, the supply testimony. informer in “If the Court required give finds that the informer should be the testimony, public entity identity, and the elects not to disclose his the Court on motion of the in a criminal case shall dis- miss charges relate, to which the and the court cases, any In the court make do so on its own motion. civil justice requires.” order that state, Com- regarding this rule “The The Commission Comments . entity public
mission believes this balances the interest of party’s prepare confront and his defense and to examine his accuser.” 46-15-324(3), MCA,
In Legislature the Montana enacted § provides” which also addresses this That statute identity “Disclosure of the existence of an informant or of testify required if: an is not informant who will not be called to “(a) risk to the informant disclosure would result substantial effectiveness; operational to his
“(b) infringe the failure disclose will not the constitutional rights of the accused.” public’s interest policy balancing the
These rules reflect enforcement, against protecting the information to law flow of rights. defendant’s case, present regarding
In the defendant’s the record is bare Like- making informants. basis for the motion for disclosure wise, supporting its gives the order the District Court no reason appeal, we considering In this issue on decision to order disclosure. only hearing guidance. At the transcript have from the for our showing which would hearing, the defendant made no whatsoever informants. establish a need for information about confidential why ordered We the court are therefore unable to determine disclosure. present met its burden case the State contends that it subject to a substan-
showing that disclosure would the informants the iden- hearing tial risk of to disclose harm. motion boy- tity that Ms. Babella’s Officer Wicks stated friend, in other Terry LaRoque, with individuals was connected using “in violence for enforcement.” states who were the habit of excerpt transcript from states: “Q. you any feeling whether or not disclosure Do have as to harm to them? these informants could result a risk of Yes, sir, “A. I do.
“Q. your feeling? What is the basis for *4 connected with investigation “A. revealed that individuals Our has for LaRoque using violence other states are in the habit enforcement. Pasco, in the particular, Washington, resulted
“In one incident
315 people by gun. people These have been di- death four machine rectly investigation.” LaRoque by tied into Mr. finding guns in the residence
Officer Wickes also testified to nine LaRoque Ms. Mr. Babella. cross-examination,
On asked if Babella herself defense counsel Ms. “Yes,” said, had made threats the informants. The officer and stated between Ms. and law en- that after discussion Babella forcement, activity reported police Ms. Babella had to “some many “they Mexicans in who in so that would town” told her words “ problem. handle the testimony Officer Wicks established that disclosure would clearly result in substantial risk to the and is sufficient 46-15-324(3)(a), privilege pursuant to invoke the to MCA. § exceptions may Ms. ap Babella contends that in her case two ply to urges this rule of She that nondisclosure violate 46-15-324(3) rights (b), MCA, her pursuant constitutional to or give “testimony any that the informant be relevant able to pursuant 502(c)(2), However, issue” Rule M.R.Evid. Ms. Babella absolutely made no showing exception. either which would invoke After reported Officer po Wicks testified that Ms. Babella had activity town,” lice to “some Mexicans in defense counsel moved information,” obviously stating, “immediate disclosure that “It is pertinent to Ms. Babella’s This case.” statement made defense only attempt counsel constitutes the to show a need for defendant’s disclosure. The information referred to relate her did not even alleged conjecture supposition possible offense. “Mere about relevancy of the informant’s to warrant dis insufficient closure.” State v. McLeod (1987), 672, 482,] 740 Mont. P.2d [227 675, (11th United 1251, 44 St.Rep. States v. Kerris (citing 1255 Cir. 1984), 614). Sykes 610, (1983), stated in State F.2d As we [-Mont._,] 695, 690, 693, “allowing St.Rep. 663 P.2d such a challenge presented by routine as that defendant would ham string operation agencies.” effective of law enforcement Whereas burden, part the State met its there a total was failure any compel to demonstrate which disclosure. need general wholly inadequate of a assertion need for disclosure was satisfy test, the defendant’s burden under the Rouiaro or under either relevant statute.
Ms. Babella contends State must first disclose the rel that testimony. only evance of the argues informants’ She then can violated, only she if know her rights constitutional have been *5 the balanc- balancing then can the test made. This misconstrues be test, balancing requirements this ing and the under the statutes. disclosure, is show need for test the burden on the defendant to the inter- government’s and this need must be one which overrides the (9th v. Prueitt speculation United States est. Mere will not suffice. 1976), 540 Cir. F.2d 1003-04. is case remanded
The District Court’s order is vacated and this proceedings. further HARRI-
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SON, McDONOUGH concur. GULBRANDSON and SHEEHY, dissenting:
MR. JUSTICE (1) analysis majority grounds, I dissent on two of 46-15- (2) 324(3), MCA, testimony police incomplete, of of- is and imprecise, as it is and regarding danger vague ficer to the informants to the Annette Babella. relates (b) (a) in set out and as First the statute. It has two subsections the con- majority opinion. The with subsections are connected information, junction To because gain “and.” the nondisclosure (2) (1) risk, and conjunction, must substantial the State show ma- rights infringed. are not the constitutional the accused jority utterly to opinion prong but fails examine discusses first rights, including the infringement of Babella’s constitutional face-to-face, right prepare a her to meet accusers defense.
Second, Of- purported risk to the informers. arcanely on one speaks vaguely of a “habit” based ficer Wicks spoke po- testified that she incident unconnected Babella. He “they activity her lice town” who told “some Mexicans any dan- problem.” Nothing in statements reflects handle the those informers, ger that “Mexi- unless we assume hidden witnesses problem, “handling” dangerous, cans” as a class are and that most, danger spec- supposed the Mexicans meant violence. ulation, testimony is has. if the all State
I would affirm the District Court. dissent.
MR. JUSTICE HUNT concurs