[1] The prosecution appeals a judgment of the El Paso County District Court dismissing felony cocaine possession, distribution and conspiracy charges against the defendants, Dorothy W. Thurman, James C. Thurman and Penny Kay Tyler.1 The prosecution asserts that the trial court abused its discretion in ruling that the defendants' rights to confront the only eyewitness against them, a confidential informant, required that the prosecution comply with the court's order to divulge the witness's address and current place of employment despite the witness's fears for her safety. The trial court ruled that the prosecution's refusal to comply with the disclosure order required dismissal of the charges against the defendants.2 We affirm.
[3] Included among the pre-trial motions filed by counsel for each defendant were motions that the prosecution be ordered to reveal the identity, location and criminal history of CI 606. The trial court held several pre-trial hearings to consider defense motions. At the initial hearing on March 25, 1988, the court heard arguments from counsel for two of the defendants, James C. Thurman and Penny Kay Tyler, concerning their motions for disclosure of information about the confidential informants.3 Counsel argued that the information requested was critical to preparation of each defendant's case, and that their clients' sixth amendment rights to confront the witnesses against them would be compromised without it.
[4] In response, the prosecution offered to make CI 606 available to defense counsel for an interview and to reveal her criminal record, but not her name or address, in lieu of full disclosure, arguing that such a compromise would satisfy the defendants' sixth amendment rights while protecting the witness from the defendants and allowing the police to continue employing her services to secure information.4 After the trial court expressed its view that the prosecution's proposal was "novel" but "not satisfactory," the prosecution suggested that the court apply a balancing test, weighing the defendants' rights to the information to prepare their cross-examination of CI 606 against the prosecution's desire to maintain her confidentiality. The prosecution repeated its view that the defendants' confrontation rights could be served by permitting the defense to interview CI 606 and later to cross-examine her at trial without disclosing her name or address.
[5] Defense counsel, on the other hand, argued against qualifying the defendants' rights to confront the only eyewitness to the alleged crimes. The trial court elected not to rule on the motion from the bench. On April 4, 1988, before holding a second pre-trial hearing on unrelated matters, the trial court ordered the prosecution to give the defense CI 606's name, "rap sheets" and all other background information known to it, and to make her available for an interview by defense counsel.
[6] The disclosure issue arose again at a June 20, 1988, pre-trial hearing attended by counsel for all three defendants. At that time, counsel for defendant Dorothy W. Thurman informed the trial court that the prosecution had revealed CI 606's name and had allowed an investigator in defense counsel's office to interview her. Counsel stated that during the interview, CI 606 admitted her participation in "a couple of drug treatment programs as of late and [that she] is an addict." The informant stated that she was not "working off any deals," that is, working as a police informant in exchange for the dismissal of criminal charges. CI 606 refused, however, to disclose the results of drug treatment programs in which she had participated.
[7] Based on information gleaned from the interview, the defense requested that the trial court order the prosecution to provide additional information concerning CI 606's credibility.5 The trial court granted the *Page 649 request in part and denied it in part. The prosecution was ordered to provide the defense with CI 606's "batting average," or percentage of information provided the police department in the past that had proved reliable, with a formal statement that CI 606 had not received any deals in exchange for information, and with information concerning any drug rehabilitation programs in which CI 606 had participated and concerning which the state had any involvement or information. In conclusion, the court ruled that "information available to the prosecution will be required to be shared with the defense."
[8] The prosecution then requested that the trial court enter a specific ruling as to whether its disclosure order encompassed CI 606's current address, employment history and current place of employment, to which the trial court responded, "[i]f you know it, give it to [defense counsel]." The prosecutor initially agreed, but then informed the trial court that CI 606 did not want her employment history revealed. Dorothy W. Thurman's attorney in turn stipulated that counsel for the defendants would not divulge the information to their clients if CI 606's reluctance was based on fears for her safety. The trial court accepted the stipulation and repeated its order that the prosecution make the information known to it or to the police department available to defense counsel, placing defense counsel under an obligation to keep the information to themselves and their investigators and away from their clients.
[9] The prosecution did not disclose the present or prior addresses of CI 606 or the name and address of her employer as required by the disclosure order. Counsel for two of the defendants, Penny Kay Tyler and James C. Thurman, then filed motions to dismiss the Information or, in the alternative, to strike CI 606 from the district attorney's witness list.6
[10] The trial court considered the motions to dismiss at a hearing held on July 15, 1988. The prosecution explained that its failure to comply with the disclosure order stemmed in part from the police department's refusal to cooperate. The prosecution made an offer of proof that CI 606 feared that harassment, retaliation and embarrassment would result if the information requested were revealed to defense counsel. The prosecution added that defendant Dorothy W. Thurman had a history "indicating a number of assaults, assaultive arrests, aggravated robbery arrest, I believe three felony assault arrests," although none of the assaults had resulted in a conviction, and concluded by urging the trial court to exercise its discretion under C.A.R. 16(I)(e)(2)7 to disallow the earlier-ordered disclosure. *Page 650
[11] Defense counsel urged dismissal, arguing that CI 606's address, employment history and current place of employment were critical to obtain information for the purpose of impeaching the witness, and that the relative credibility of CI 606 and the defendants would be the sole issue at trial. The defense pointed out that the prosecution's offer of proof contained no evidence of threats against CI 606, and that the trial court's order that defense counsel keep the information about CI 606 confidential removed any reasonable basis for her fears. The defense further noted the additional safeguard posed by the mandatory restraining order imposed against every criminal defendant in the state under section 18-1-1001, 8B C.R.S. (1986).8 Before ruling on the motion, the trial court asked the prosecution whether dismissal of the case was the appropriate solution to the dilemma. When the prosecution stipulated that in absence of a modification of the discovery order to eliminate the requirement of providing the witness's address and place of employment, dismissal would be the appropriate remedy, and did not suggest any less severe remedy, the trial court dismissed the charges against all three defendants.9
[14] "that the witness may be identified with his community so that independent testimony may be sought and offered of his reputation for veracity in his own neighborhood; that the jury may interpret his testimony in the light reflected upon it by knowledge of his environment; and that facts may be brought out tending to discredit the witness by showing that his testimony in chief was untrue or biased."
[15] Alford v. United States, 282 U.S. 687, 691-92 (1931) (citations omitted).
[16] In Alford v. United States, the United States Supreme Court unanimously reversed a federal mail fraud conviction because the trial court denied the accused the opportunity to elicit the place of residence of an important prosecution witness. Noting that cross-examination is necessarily exploratory, and accordingly that "[c]ounsel often cannot know in advance what pertinent facts may be elicited on cross-examination," id. at 692, the Court stated that "the rule that the examiner must indicate the purpose of his inquiry does not, in general, apply." Id. The Court reasoned:
[17] "It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial."
[18] Id. at 692 (citations omitted).
[19] The government's refusal to reveal the identity of a police informant who is *Page 652 not a witness against the defendant has been clearly distinguished from its refusal to do so where the informant is also a witness. The former does not deny the accused's right of confrontation; in the latter situation, the witness's identity generally must be revealed. J. Cook,Constitutional Rights of the Accused § 18.9 (2d ed. 1986) (citing cases); see Smith v. Illinois, 390 U.S. 129, 133 n. 8 (1968); People v.Langford, 191 Colo. 87, 90, 550 P.2d 329, 331 (1976).
[20] In Smith v. Illinois, the United States Supreme Court reviewed a state conviction for illegal sale of narcotics. The outcome of the trial turned on the relative credibility of the defendant and the government's principal informant-witness, a man who identified himself on direct examination as "James Jordan." On cross-examination, the defense was permitted to elicit the fact that "James Jordan" was not the witness's true name, but was denied the opportunity to ask his correct name or current address. The Court reversed the conviction, reasoning that
[21] "when the credibility of a witness is in issue, the very starting point in `exposing falsehood and bringing out the truth' through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself."
[22] Id. at 131 (quoting Pointer, 380 U.S. at 404).
[24] Justice White's "personal safety exception" to the universal rule ofAlford and Smith, although never adopted by a majority of the Court, has been widely cited and applied by lower federal courts.11 The *Page 653 prosecution points to a number of those cases, each a highly fact-specific decision affirming a trial court's exercise of discretion in applyingAlford and Smith, as conclusively demonstrating that the trial court in the case before us abused its discretion. A reading of these cases demonstrates that a witness's assertion of concern for personal safety does not have a talismanic quality automatically giving the witness the right to withhold information about identity, address and place of employment. Rather, the proper resolution of such issues requires careful attention to the facts of each case and application of the law concerning the right of an accused to confront adverse witnesses.
[25] Colorado has also recognized a "personal safety exception." InPeople ex rel. Dunbar v. District Court, 177 Colo. 429, 494 P.2d 841 (1972), we held that the trial court abused its discretion in dismissing an Information after the prosecution's principal witness at a preliminary hearing, a Colorado Bureau of Investigation agent, refused to disclose his address. The witness had disclosed his identity and place of employment, but explained that the trailer furnished him by the Bureau, in which he lived while on the road, had been blown up; that Bureau intelligence indicated that there was a "contract" out on his life; and that he was concerned about his family's safety. Dunbar, 177 Colo. at 431,494 P.2d at 842. The trial court, however, ruled that regardless of any safety considerations, the witness was required to answer.
[26] In Dunbar, we recognized both the general rule that the right of confrontation includes the right to elicit a witness's address by cross-examination and the exception to that rule outlined in Alford for questions intended merely to harass, annoy or humiliate the witness, as well as the "personal safety exception" advanced by Justice White in his concurrence to Smith v. Illinois. Dunbar, 177 Colo. at 432,494 P.2d at 843. We also cited with approval United States v. Baker,419 F.2d 83 (2d Cir. 1969), cert. denied, 397 U.S. 976 (1970), in which the Second Circuit Court of Appeals held that the trial court exercised its discretion properly in upholding a witness's refusal to disclose his place of employment, noting that the defense in that case had received materials concerning the witness's background that enabled defense counsel to cross-examine the witness fully and effectively without the information concerning his place of employment. Dunbar, 177 Colo. at 433,494 P.2d at 843.
[27] We then discussed each party's respective responsibilities when a defendant's right to information about a witness is at stake. Placing the initial burden on the witness or prosecution, we stated that "the danger claimed by the witness must in some way relate to the particular defendant. There must be a nexus such that the witness legitimately fears reprisal from the defendant or his associates." Id. "[A]fter the witness [has] made a showing that his safety would be endangered if he answered," the defendant has the duty to show that the information sought has "some materiality." Id. Applying these principles, we held that the trial court abused its discretion in ordering the witness to disclose his address "without some showing by the defendant that the disclosure was so material as to outweigh the matter of the safety of the witness," and without "balancing *Page 654 the rights of the witness to protect his life against defendant's right of confrontation." Dunbar, 177 Colo. at 434, 494 P.2d at 844.
[28] The principles enunciated in Dunbar remain sound. The prosecution argues, however, that under Dunbar the trial court must find that the withheld information would inevitably lead to impeachment material sufficiently material to outweigh the witness's safety concerns. This stretches Dunbar beyond its natural limits.
[29] Dunbar places the burden on the prosecution to offer an explanation when it objects to the revelation of information about the witness.Dunbar, 177 Colo. at 433, 494 P.2d at 843; see United States v. Alston,460 F.2d 48, 53 (5th Cir.), cert. denied, 409 U.S. 871 (1972). A defendant is presumptively entitled to cross-examine a prosecution witness as to the witness's address and place of employment. UnitedStates v. Navarro, 737 F.2d 625, 633 (7th Cir.), cert. denied,469 U.S. 1020 (1984). Absent sufficient justification for withholding this information, a defendant's right to it is unqualified, and the defendant is under no obligation to provide reasons for seeking it.McGrath v. Vinzant, 528 F.2d 681, 685 (1st Cir.), cert. dismissed,426 U.S. 902 (1976). The prosecution's showing must consist of more than the mere expression of apprehension by a witness who is reluctant to divulge her identity, address or place of employment. United States v.Fife, 573 F.2d 369, 376 (6th Cir. 1976), cert. denied, 430 U.S. 933 (1977). Ideally, the witness or the prosecution will provide the trial court, outside the presence of the jury, with a factual basis for the witness's apprehension, id., such as evidence of an actual threat to the witness. See State v. Hassberger, 350 So.2d 1, 5 (Fla. 1977). At minimum, however, "the danger claimed by the witness must in some way relate to the particular defendant. There must be a nexus such that the witness legitimately fears reprisal from the defendant or his associates." Dunbar, 177 Colo. at 433, 494 P.2d at 843.
[30] Because the prosecution in Dunbar met its burden by showing a clear factual basis for the witness's fear for his personal safety, we held that the trial court erred in requiring that the witness disclose his address regardless of any safety considerations. Given the prosecution's prima facie showing of danger to the witness, the trial court's failure to balance the witness's interests against the defendant's amounted to an abuse of discretion. Our statement in Dunbar that an adequate showing by the prosecution that the witness legitimately fears for his safety requires some showing in turn by the defendant "that the disclosure [is] so material as to outweigh the matter of the safety of the witness," followed by a balancing of interests by the trial court, Dunbar, 177 Colo. at 434, 494 P.2d at 844, should not be interpreted as requiring a threshold demonstration by the defendant that the information to be developed from learning the witness's identity, address and place of employment would prove highly material. It usually would be impossible, prior to disclosure, for a defendant to state facts showing the materiality of a witness's identity, address or place of employment or to prove that disclosure would inevitably lead to impeaching material. The defendant's burden extends only to showing that the confidential informant is a material witness on the issue of guilt and that nondisclosure would deprive the defendant of a fair opportunity to test the witness's credibility.
[31] The trial court, in exercising its sound discretion, is in the best position to assess the basis for and seriousness of the witness's apprehension. When such apprehension is expressed, the key consideration for a trial court in assessing a defendant's constitutional claim to a witness's identity, address or place of employment is whether in absence of that information the defendant will have sufficient "opportunity to place the witness in his proper setting." Smith v. Illinois, 390 U.S. at 132 (quoting Alford, 282 U.S. at 692); accord United States v. *Page 655 Mesa, 660 F.2d 1070, 1075 (5th Cir. 1981); McGrath, 528 F.2d at 685.
[32] Accordingly, our inquiry must focus on whether the trial court abused its discretion in ruling that CI 606's fears for her personal safety did not justify encroachment on the defendants' rights to confront and cross-examine her by use of her address and place of employment, because without that information the defense would be unable to place CI 606 in her proper setting.
[34] The trial court did not unhesitatingly order public disclosure of CI 606's address and place of employment. The court sought to protect the defendants' confrontation rights by ordering defense access to CI 606 along the lines proposed by the prosecution. After the defense interviewed CI 606 and learned more about her, it became even more important that her co-workers and neighbors be asked about her reputation for truth, and that her background be thoroughly delved into to ascertain her credibility. When the prosecution informed the trial court that it was unwilling to reveal CI 606's address or place of employment because of her concerns for her safety, the defense suggested that the trial court might allay her fears by ordering the prosecution to reveal the information to defense counsel alone after imposing an obligation not to divulge the information to the defendants. The trial court accepted the suggestion and entered an order to that effect. The prosecution did not protest the order until later, when it became clear that the police department would not cooperate. The prosecution then made an offer of proof to support CI 606's fears.
[35] CI 606 received no actual threat, nor were there any rumors of one. CI 606's fears were based instead on the fact that Dorothy W. Thurman had a history of criminal conduct, including arrests for assault, but no convictions, and on CI 606's status as a police informant. Before ruling on the motions to dismiss, the trial court gave the prosecution another chance to suggest a solution to the problem. Instead, the prosecution stipulated that dismissal of the charges against the defendants would be the appropriate solution if the trial court did not abrogate the disclosure order.
[36] Given that no actual threat was made against CI 606; that the trial court attempted to accommodate all parties by limiting disclosure to defense counsel alone; that both CI 606's address and place of employment were withheld; and that without the sought-after information the defense could not place CI 606 in her proper setting, we conclude that the trial court acted within the bounds of its discretion in dismissing the Information against the defendants. *Page 656 We affirm the judgment of the El Paso County District Court.
[37] JUSTICE VOLLACK does not participate.