No. 88-524
I N THE SUPREME COURT OF THE STATE OF M N A A
O T N
1989
STATE OF MONTANA,
P l a i n t i f f and A p p e l l a n t ,
-VS-
ANNETTE BABELLA,
Defendant and Respondent.
APPEAL FROM: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f M i s s o u l a ,
The H o n o r a b l e James B . W h e e l i s , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Hon. Marc R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , Montana
R o b e r t F.W. S m i t h , A s s t . A t t y . G e n e r a l , H e l e n a
R o b e r t L. Deschamps, County A t t o r n e y ; C r a i g F r i e d e n a u e r ,
Deputy County A t t y . , M i s s o u l a , Montana
For Respondent:
J. Dirk Beccari, P u b l i c Defender, iss sou la, Montana
S u b m i t t e d on B r i e f s : Jan. 26, 1989
Decided: May 9 , 1989
i .I
Filed: 4
,
- -,
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The District Court for the Fourth Judicial District,
Missoula County, dismissed the charges against this defen-
dant. The State appeals. We reverse.
The issue is:
Did the District Court err in granting defendant's
motion which requested disclosure of the identity of confi-
dential informants?
On October 3, 1987, Missoula law enforcement obtained a
search warrant to search the home of Terry LaRoque. The
application for the warrant was lengthy and contained infor-
mation from several sources including Crimestoppers reports,
anonymous phone calls, a participant in the drug sales, and
information from confidential informants. The application
recited specific instances in which reports given by infor-
mants and callers had been verified by law enforcement.
Information obtained from the informants and other sources
linked the sale of drugs to Terry LaRoque.
When the officers executed the search warrant at the
home of Terry LaRouqe, Ms. Babella was found in bed with him.
Drugs, various items of drug paraphernalia, and a large
amount of cash, were found in the bedroom and in pants be-
longing to Ms. Babella. She was subsequently arrested.
On October 19, 1987, the State filed an information
charging Ms. Babella with the offense of possession of dan-
gerous drugs with the intent to sell, in violation of 5
45-9-103(1), MCA. Ms. Babella plead not guilty on November
13, 1987. Later, the defendant moved for the disclosure of
the State's confidential informants, and a hearing on this
motion was held on June 17, 1988. At that hearing the State
presented one witness, police officer Bill Wicks. He testi-
fied to facts which indicated that disclosure of identity
would produce a substantial risk of harm to the informants.
The defendant produced no testimony. The court ordered both
parties to brief the issue, and subsequently ordered the
State to disclose the identity of the informants. When the
State refused, the court ordered the charges against the
defendant dismissed.
A governmental entity may claim the privilege to refuse
to disclose the identity of its confidential informants.
This privilege is not absolute but is subject to a balancing
test enunciated in Roviaro v. United States (1957), 353 U.S.
53, 77 S.Ct. 623, 1 L.Ed.2d 639. In Roviaro the Court
stated:
We believe that no fixed rule with respect to
disclosure is justifiable. The problem is one that
calls for balancing the public interest in protect-
ing the flow of information against the individu-
al'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.
353 U.S. at 62.
Montana previously recognized this test in State ex rel.
Offerdahl v. Dist. Ct. of Eighth Judicial Dist. (1971), 156
Mont. 432, 481 P.2d 338.
This privilege was codified in Montana in 1977 by the
enactment of Rule 502 M.R.Evid, which states:
(a) Rule of privilege. The United States or
a state or subdivision thereof has a privilege to
refuse to disclose the identity of a person who has
furnished information relating to or assisting in
an investigation of a possible violation of a law.
(b) Who may claim the privilege. The privi-
lege may be claimed by an appropriate representa-
tive of the public entity to which the information
was furnished.
(c) Exceptions and limitations.
(1) Voluntary disclosure; informer a witness.
No privilege exists under this rule if the identity
of the informer or his interest in the subject
matter of his communication has been disclosed to
those who would have cause to resent the communi-
cation by a holder of the privilege or by the
informer's own action, or if the informer appears
as a witness for the public entity.
(2) Testimony on relevant issue. If it
appears in the case that an informer may be able to
give testimony relevant to any issue in a criminal
case or to a fair determination of a material issue
on the merits in a civil case to which a public
entity is a party, and the public entity invokes
the privilege, the court shall give the public
entity an opportunity to show facts relevant to
determining whether the informer can, in fact,
supply that testimony.
If the Court finds that the informer should be
required to give the testimony, and the public
entity elects not to disclose his identity, the
court on motion of the defendant in a criminal case
shall dismiss the charges to which the testimony
would relate, and the court may do so on its own
motion. In civil cases, the court may make any
order that justice requires.
The Commission Comments regarding this rule state, "The
Commission believes this balances the interest of the public
entity against a party's right to prepare his defense and to
confront and examine his accuser."
In 1985, the Montana Legislature enacted § 46-15-324(3),
MCA, which also addresses this privilege. That statute
provides :
Disclosure of the existence of an informant or
of the identity of an informant who will not be
called to testify is not required if:
(a) disclosure would result in substantial
risk to the informant or to his operational effec-
tiveness; and
(b) the failure to disclose will not infringe
the constitutional rights of the accused.
These rules reflect the policy of balancing the public's
interest in protecting the flow of information to law en-
forcement, against the defendant's rights.
In the present case, the record is bare regarding the
defendant's basis for making the motion for disclosure of the
informants. Likewise, the order by the District Court gives
no reason supporting its decision to order disclosure. In
considering this issue on appeal, we have only the transcript
from the hearing for our guidance. At the hearing, the
defendant made no showing whatsoever which would establish a
need for information about the confidential informants. We
are therefore unable to determine why the court ordered
disclosure.
In the present case the State contends that it met its
burden by showing that disclosure would subject the infor-
mants to a substantial risk of harm. At the hearing on the
motion to disclose the identity of the informants, Officer
Wicks stated that Ms. Babella's boyfriend, Terry LaRoque, was
connected with individuals in other states who were "in the
habit of using violence for enforcement." The excerpt from
the transcript states:
Q. Do you have any feeling as to whether or not
disclosure of these informants could result in
a risk of harm to them?
A. Yes, sir, I do.
Q. What is the basis for your feeling?
A. Our investigation has revealed that individu-
als connected with LaRoque in other states are
in the habit of using violence for
enforcement.
In particular, one incident in Pasco,
Washington, resulted in the death of four
people by machine gun. These people have been
directly tied into Mr. 1,aRoque by
investigatj-on.
Officer Wickes also testified to finding nine guns in the
residence of Mr. LaRoque and Ms. Babella.
On cross-examination, defense counsel asked if Ms.
Babella herself had made threats against the informants. The
officer said, "Yes," and stated that after a discussion
between Ms. Babella and law enforcement, Ms. Babella had
reported the police activity to "some Mexicans in town" who
told her in so many words that "they would handle the
problem. "
The testimony by Officer Wicks established that disclo-
sure would result in substantial risk to the informants, and
is clearly sufficient to invoke the privilege pursuant to 5
46-15-324 (3) (a), MCA.
Ms. Babella contends that in her case two exceptions may
apply to this rule of privilege. She urges that nondisclo-
sure may violate her constitutional rights pursuant to S
46-15-324 (3)(b), MCA, or that the informant may be able to
give "testimony relevant to any issue" pursuant to Rule
502(c)(2), M.R.Evid. However, Ms. Babella made absolutely no
showing which would invoke either exception. After Officer
Wicks testified that Ms. Babella had reported the police
activity to "some Mexicans in town," defense counsel moved
for "immediate disclosure of that information," stating, "It
is obviously pertinent to Ms. Babella's case." This state-
ment made by defense counsel constitutes the defendant's only
attempt to show a need for disclosure. The information
referred to did not even relate to her alleged offense.
"Mere conjecture or supposition about the possible relevancy
of the informant's testimony is insufficient to warrant
disclosure." State v. McLeod (1987), 740 P.2d 672, 675, 44
St.Rep. 1251, 1255 (citing United States v. Kerris (11th Cir.
1984), 748 F.2d 610, 614). As we stated in State v. Sykes
(1983), 663 P.2d. 691, 695, 40 St.Rep. 690, 693, "allowing
such a routine challenge as that presented by defendant would
hamstring the effective operation of law enforcement agen-
cies." Whereas the State met its burden, there was a total
failure on the part of the defendant to demonstrate any need
which would compel disclosure. The general assertion of a
need for disclosure was wholly inadequate to satisfy the
defendant's burden under the Roviaro test, or under either
relevant statute.
Ms. Babella contends that the State must first disclose
the relevance of the informants' testimony. She argues that
only then can she know if her constitutional rights have been
violated, and only then can the balancing test be made. This
misconstrues the balancing test, and the requirements under
the statutes. In this balancing test the burden is on the
defendant to show the need for disclosure, and this need must
be one which overrides the government's interest. Mere
speculation will not suffice. United States v. Prueitt (9th
Cir. 1 9 7 6 ) , 540 F.2d 995, 1003-04.
The District Court's order is vacated and this case is
remanded for further proceedings.
We Concur:
Mr. Justice John C. Sheehy, dissenting:
I dissent on two grounds, (1) the majority analysis of S
46-15-324(3), MCA, is incomplete, and (2) the testimony of
the police officer regarding danger to the informants is
vague and imprecise, as it relates to the defendant Annette
Babella.
First the statute. It has two subsections (a) and (b)
as set out in the majority opinion. The subsections are
connected with the conjunction "and." To gain the
nondisclosure of information, because of the conjunction, the
State must show (1) substantial risk, and (2) the
constitutional rights of the accused are not infringed. The
majority opinion discusses the first prong but fails utterly
to examine the infringement of Babella's constitutional
rights, including the right to meet her accusers
face-to-face, and the right to prepare a defense.
Second, the purported risk to the informers. The
testimony of Officer Wicks speaks vaguely and arcanely of a
"habit" based on one incident unconnected to Babella. He
testified that she spoke of police activity to "some Mexicans
in town" who told her "they would handle the problem."
~othing in those statements reflects any danger to hidden
witnesses or informers, unless we assume that "~exicans"as a
class are dangerous, and that in "handling" the problem, the
Mexicans meant violence. At most, the supposed danger is
speculation, if the testimony is all the State has.
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I c o n c u r i n t h e d i s s e n t of M s t i c e J o h n C.