MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 29 2016, 7:07 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Gregory F. Zoeller
Wieneke Law Office Attorney General
Brooklyn, Indiana Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marvin Beville, March 29, 2016
Appellant-Defendant, Court of Appeals Case No.
84A01-1507-CR-890
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable Michael J. Lewis,
Appellee-Plaintiff Judge
Trial Court Cause No.
84D06-1411-F6-2855
Mathias, Judge.
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[1] Marvin Beville (“Beville”)1 was charged with Class A misdemeanor dealing in
marijuana and Level 6 felony maintaining a common nuisance in Vigo Superior
Court. Beville brings this interlocutory appeal and argues that the trial court
erred when it denied his motion to compel the State to provide him with a copy
of the video recording of the alleged controlled drug transaction.
[2] We affirm.
Facts and Procedural History
[3] On December 5, 2014, the State charged Beville with Class A misdemeanor
dealing in marijuana and Level 6 felony maintaining a common nuisance.
Importantly, the charges alleged that Beville delivered marijuana to a
confidential informant (“CI”) on October 23, 2014. The State obtained a video
recording of the transaction between Beville and the CI. Beville sent a letter to
the prosecutor requesting a copy of the video recording and listing two possible
names of the CI, but neither name correctly identified the informant in this
case.
[4] At the initial hearing, the trial court ordered discovery pursuant to Local Rule
6. Local Rule 6 provides in relevant part:
In all criminal cases, the Court has entered the following General
Order concerning pre-trial discovery:
1
The trial court documents identify Defendant as Marvin Beville and Marvin Belville interchangeably.
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(B) (1) The State shall perform these obligations in any manner
mutually agreeable to the Prosecutor’s Office and to defense
counsel. The State shall provide legible copies of existing written
statements described in paragraphs (A)(1), (2), (3), and (7). Other
items shall be provided for examination, testing, copying,
photographing, or other proper use either by agreement or at
specified reasonable times and places. Defense counsel shall
provide reasonable notice of such examination and shall schedule
these examinations in cooperation with the State. An application
to the Court shall be made to obtain copies of audio or video
tape. Said application shall state in specific terms the necessity
for such copies.
***
(G) (1) The Court may deny disclosure upon showing that:
(b) There is a paramount interest in non-disclosure of an
informant[’]s identity and a failure to disclose will not
infringe the Constitutional rights of the accused. Disclosure
of the identity of witnesses to be produced at a hearing or
trial will be required.
Appellant’s App. pp. 13, 13(a), 14.
[5] The State filed its notice of compliance with discovery on January 5, 2015,
which provides in pertinent part: “All audio or video recordings are maintained
by the Office of the Vigo County Prosecutor and are available for review by
contacting the deputy prosecutor to schedule a mutually agreeable time.”
Appellant’s App. p. 18. Although the State allowed defense counsel to review
the video recording at the prosecutor’s office, it would not allow defense
counsel to obtain a copy to review with Beville.
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[6] Beville filed a motion to compel discovery of the video recording of the alleged
controlled buy on April 28, 2015. A hearing was held on May 6, 2015, and the
trial court took the matter under advisement. On the same day, Beville filed an
application to obtain copies of audio and video pursuant to Local Rule 6 (B)(1).
On May 13, 2015, the trial court denied Beville’s motion to compel and
concluded that the State was not required to provide Beville with the
audio/video of the alleged controlled buy or any other documents identifying
the CI. Appellant’s App. p. 60. Beville now appeals.
Standard of Review
[7] A trial court has broad discretion in ruling upon discovery matters and will only
be overturned upon a showing of abuse of discretion. Skinner v. State, 920
N.E.2d 263, 265 (Ind. Ct. App. 2010) (citing State v. Hogan, 588 N.E.2d 560,
562 (Ind. Ct. App. 1992)), trans. denied. An abuse of discretion occurs when the
trial court reaches a conclusion that is against the logic and natural inferences to
be drawn from the facts of the case. Corll v. Edward D. Jones & Co., 646 N.E.2d
721, 723 (Ind. Ct. App. 1995). “Due to the fact-sensitive nature of discovery
issues, a trial court’s ruling is cloaked with a strong presumption of
correctness.” Hlinko v. Marlow, 864 N.E.2d 351, 353 (Ind. Ct. App. 2007), trans.
denied.
Discussion and Decision
[8] Beville argues that the trial court erred in denying his request to obtain a copy
of the video recording of the alleged controlled buy. He specifically contends
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that the video is both relevant to the defense and necessary to ensure a fair trial,
and as such, the trial court should have granted Beville’s motion to compel. The
State argues that the CI’s identity will be revealed if Beville is permitted to
review the video.
[9] The Indiana Rules of Trial Procedure generally apply to criminal proceedings in
the absence of a conflicting criminal rule. Ind. Crim. Rule 21. Indiana Trial
Rule 26(B)(1) provides:
Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject-matter involved in the
pending action, whether it relates to the claim or defense of the
party seeking discovery or the claim or defense of any other
party.
When it comes to a defendant’s discovery request in a criminal case, the
following test has been applied to determine whether the information is
discoverable: (1) there must be a sufficient designation of the items
sought to be discovered (particularity); (2) the items requested must be
material to the defense (relevance); and (3) if the particularity and
materiality requirements are met, the trial court must grant the request
unless there is a showing of “paramount interest” in non-disclosure.
Lewis v. State, 726 N.E.2d 836, 843 (Ind. Ct. App. 2000) (citing In Re
WTHR-TV v. Cline, 693 N.E.2d 1, 6 (Ind. 1998)).
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[10] “The general policy is to prevent disclosure of an informant’s identity unless the
defendant can demonstrate that disclosure is relevant and helpful to his defense
or is necessary at trial.” Mays v. State, 907 N.E.2d 128, 131 (Ind. Ct. App. 2009)
(quoting Schlomer v. State, 580 N.E.2d 950, 954 (Ind. 1991)). Because the State
has the privilege to withhold the identity of an informant, the burden is upon
the defendant seeking disclosure to demonstrate exception to the privilege that
the informant remain anonymous. Beverly v. State, 543 N.E.2d 1111, 1114 (Ind.
1989). “[B]are speculation that the information may possibly prove useful” is
not enough to justify the disclosure of a confidential informant’s identity, and
an informant’s identity shall not be disclosed “to permit ‘a mere fishing
expedition.’” Mays, 907 N.E.2d at 131 (citations omitted).
[11] “The trial [court] must then make [a] decision by balancing the public interest
in encouraging a free flow of information to the authorities with the defendant’s
interest in obtaining disclosure to prepare his defense.” Furman v. State, 496
N.E.2d 811, 814 (Ind. Ct. App. 1986) (quoting Roviaro v. United States, 353 U.S.
53, 62 (1957)).
[12] Beville specifically requested a copy of the video recording of the alleged
controlled buy and explained at the hearing his belief that the State intended to
introduce the video as its main piece of evidence at trial. Beville also
emphasized his need to obtain a copy of the video so an expert could determine
its authenticity for purposes of his defense. Arguably, Beville met the
particularity and materiality prongs of the test related to the video recording.
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However, we hold that Beville failed to overcome his burden that an exception
to the privilege should apply.
[13] Local Rule 6 (G)(1)(b) provides that a court may deny disclosure upon showing
that “[t]here is a paramount interest in non-disclosure of an informant’s identity
and a failure to disclose will not infringe the Constitutional rights of the
accused.” Although Beville argues that his purpose is to review the video to
develop a defense at trial, after watching the video he will learn the identity of
the CI. Beville does not know the identity of the CI. The trial court determined
that the State showed a “paramount interest” in protecting the CI’s identity to
prevent retaliation and ensure that individuals come forward with information
to assist law enforcement. See Lewis, 726 N.E.2d at 843; Furman, 496 N.E.2d at
814. We cannot say that the trial court’s conclusion is against the logic and
natural inferences to be drawn from the facts of this case.
[14] Further, and very importantly, the State provided Beville’s defense counsel an
opportunity to review the video of the alleged controlled buy at the prosecutor’s
office. Although the State restricted Beville from being present at the time of
review, his defense counsel may sufficiently prepare for trial and develop
defenses without disclosing the CI’s identity to Beville. An expert would also
have an opportunity to review the video recording to determine whether it is
authentic under this arrangement by making an appointment. Both the public
interest of encouraging a free flow of information to the authorities and
Beville’s interest to prepare his defense are served here.
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[15] We conclude that the trial court properly denied Beville’s motion to compel the
State to provide a copy of the video recording of the alleged controlled drug
transaction.
[16] Affirmed.
Kirsch, J., concurs.
Brown, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Marvin Beville, Court of Appeals Case No.
84A01-1507-CR-890
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff
Brown, Judge, dissenting.
[17] I respectfully dissent from the majority opinion that the trial court properly
denied Beville’s motion to compel the State to provide a copy of the video
recording of the alleged controlled drug transaction.
[18] In Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623 (1957), the Court discussed
the government’s privilege in withholding the disclosure of a confidential
informant. The Court held:
A . . . limitation on the applicability of the privilege arises from
the fundamental requirements of fairness. 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. In these situations the trial court may
require disclosure and, if the Government withholds the
information, dismiss the action.
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353 U.S. at 60-61, 77 S. Ct. at 628 (footnotes omitted). The Court further held:
We believe that no fixed rule with respect to disclosure is
justifiable. The problem is one that calls for balancing the public
interest in protecting the flow of information against the
individual’s right to prepare his defense. 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. at 62, 77 S. Ct. at 628-629.
[19] The majority finds, as argued by the State, that “after watching the video
[Beville] will learn the identity of the CI.” Slip op. at 7. However, other than the
State’s mere assertion, the record does not support such a conclusion. The
record does not reveal that the trial court examined the video and made such a
finding, and the record on appeal does not contain a copy of the video.
[20] Beville’s motion to compel requested that the State comply with the discovery
request that includes “any video of alleged hand to hand buy with the
confidential informant.” Appellant’s Appendix at 38. His request to obtain
copies of audio and video alleged that the State indicated that video and/or
audio of a hand to hand buy with the CI exists and that it intends to use the
video and/or audio at a jury trial. Appellant’s Appendix at 41. The CI was
apparently a participant in the alleged controlled buy, and I could not say that
the CI played merely a tangential role, or that the video of the buy is not highly
material. Further, I would not find that the opportunity for Beville’s counsel to
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review the video recording is a sufficient substitute for an opportunity for
Beville to examine the recording and assist in the preparation of his defense.
[21] Local Rule 6(G)(1) states that “[t]he Court may deny disclosure upon showing
that . . . [t]here is a paramount interest in non-disclosure of an informant[’]s
identity and a failure to disclose will not infringe the Constitutional rights of the
accused.” Appellant’s Appendix at 14. In its objection, the State asserted
generally that the disclosure “would only serve to make the CI the target for
reprisal from those upset by the investigation.” Id. at 48. However, the State
does not point to specific facts or the record in support of its assertion, and there
is no allegation that Beville or his associates are violent. The State does not
assert that any police officer witnessed the alleged buy, that others will testify as
to the alleged buy, or that the CI was not the sole material witness. Under the
circumstances, I cannot say that there is a paramount interest in non-disclosure
of the CI’s identity and that a failure to disclose will not infringe the
Constitutional rights of the accused. See Roviaro, 353 U.S. at 63-65, 77 S. Ct. at
629-630 (observing that the informant’s possible testimony was highly relevant
and might have been helpful to the defense, the defendant’s opportunity to
cross-examine the law enforcement agents was “hardly a substitute for an
opportunity to examine the man who had been nearest to him and took part in
the transaction,” the informant had helped to set up the criminal occurrence
and had played a prominent part in it, and concluding that “[t]he desirability of
calling [the informant] as a witness, or at least interviewing him in preparation
for trial, was a matter for the accused rather than the Government to decide,”
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and concluding that trial court committed prejudicial error in permitting the
government to withhold the identity of its undercover employee in the face of
repeated demands by the accused for his disclosure); see also Commonwealth v.
Dias, 451 Mass. 463, 470, 886 N.E.2d 713, 719 (2008) (holding that a pretrial
disclosure order of an informant’s identity was necessary for a fair presentation
of the case at trial because the informant’s information and observations were
relevant and helpful to the defense); Wilson v. State, 8 Md. App. 653, 669, 262
A.2d 91, 100 (1970) (holding that an informant’s testimony “might have thrown
doubt in the identity of the articles exchanged between him” and the defendant,
“[t]he desirability of calling the [informant] as a witness, or at least interviewing
him in preparation for trial, was a matter for [the defendant] rather than the
State to decide,” and that, under the circumstances, “the privilege of
nondisclosure must yield and that the trial court abused its discretion in refusing
to compel disclosure demanded by [the defendant]”), cert. denied, 258 Md. 731
(1970).
[22] For the foregoing reasons, I would reverse the trial court’s denial of Beville’s
motion to compel.
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