People v. Underwood

Boyle, J.

I dissent from the majority’s decision to remand this case for in camera review. The majority’s remand is based on the conclusion that the confidential informant can provide information that is relevant and helpful to instructional and sentencing issues. Because the informant’s statement is not evidence essential to the defense presented by the defendant, I would affirm the Court of Appeals denial of disclosure of the informant’s identity. The in camera process in this case is unnecessary.

i

The issue before us is not disclosure of the contents of the confidential informant’s communication, because the government holds no privilege over that information as long as the contents of that information "will not tend to reveal the identity of an informer . . . .” Roviaro v United States, 353 US 53, 60; 77 S Ct 623; 1 L Ed 2d 639 (1957). What is at issue is the possible disclosure of the informant’s identity to the defendant. "The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.” Id. at 59.

*711It is important to recognize that it. is not the information provided by the informant that is privileged. We are not here evaluating the standard for in camera examination of the content of a conditionally privileged communication, which we recently held is warranted by a reasonable probability that the communication is likely to contain material necessary to the defense. People v Stanaway, 446 Mich 643; 521 NW2d 557 (1994). The contents of the informant’s testimony is well known to all the parties to the case.1 The issue before us today is whether, given the known content of the information, the government’s privilege to withhold the informer’s identity must yield. Because there is no reasonable probability that the information would have affected the factfinder’s determination of guilt or innocence, remand is not necessary.

II

Contrary to the analysis provided by the majority, ante at 705-706, the United States Supreme Court in Roviaro did not allow disclosure of the confidential informant’s identity because that information would have been merely "relevant and helpful to the defense,” but because they found the informant’s testimony to be "essential to a fair determination of [the defendant’s] cáuse . . . .” *712Roviaro, supra at 60-61.2 I recently discussed the requisite standard of materiality necessary for disclosure of a confidential informant’s identity established by Roviaro and its progeny in Stanaway, supra at 725 (Boyle, J., concurring):

While the Court articulated a confusing "relevant and helpful” or "essential” standard of materiality in Roviaro, a closer look at the facts shows that the information sought—the informer’s identity—was of vital importance to the defense. See United States v Valenzuela-Bernal [458 US 858, 870-871; 102 S Ct 3440; 73 L Ed 2d 1193 (1982)]. The informer was the only party participating with the defendant in the drug transactions for which the defendant had been accused, and the only witness who could possibly contradict the testimony presented by the government.
A determination whether the privilege must yield depends on the significance of the privileged information in the particular circumstances of the case, that is, its probative force. Thus, while disclosure of the informant’s identity in Roviaro was of vital importance because he was the only witness to the transaction charged, informant identity is denied where the informant does not actively participate in the transaction that generates the charge, or his information would be merely cumulative. United States v Mendoza-Salgado, 964 F2d 993 (CA 10, 1992). Evidence is material only if there is a reasonable probability that if it is disclosed to the defense, the result of the proceeding will be different. United States v Parker, 836 F2d 1080, 1083 (CA 8, 1987), quoting [United States v] *713Bagley [473 US 667, 682; 105 S Ct 3375; 87 L Ed 2d 481 (1985)].

While the majority notes the balancing test articulated in Roviaro for decision regarding whether disclosure of an informant’s identity is warranted, ante at 704-705, I do not interpret that test to require a mere determination that the informer’s testimony is relevant and helpful. Noteworthy in examining the proper utility of the Roviaro balancing test is State v Whittey, 134 NH 736; 599 A2d 117 (1991). Contending on appeal that he had been improperly denied discovery of a confidential informant’s testimony after an in camera review, the defendant in Whittey argued that under New Hampshire’s rules of evidence, once a court determined that it was reasonably probable that an informer could provide testimony that was "relevant,” the state needed to engage in no further balancing of its interest in protecting the identity of the informant. Id. at 738. Rejecting the defendant’s application of the Roviaro balancing test, the New Hampshire Supreme Court discussed the danger inherent in the defendant’s proposed minimal standard of materiality:

Acceptance of [the defendant’s] argument against the balancing test would mean that the prosecutor’s privilege would fail whenever a defendant could show that an informer’s testimony is relevant to some issue relating to the defendant’s guilt or innocence. Because so much unessential testimony falls under the category of "relevant,” such a doctrine would eviscerate the prosecutor’s privilege and seriously impede the flow of information necessary to effective police work. [Id. at 740.]

Ill

As alluded to in Stanaway, supra, the defendant *714faces an additional hurdle in this case because the informant neither witnessed nor participated in the offense at issue. The need to disclose an informant’s identity under these circumstances is rare.

[W]hen the government informant is not an actual participant of a witness to the offense, disclosure is required only in those exceptional cases where the defendant can point to some concrete circumstance that might justify overriding both the public interest in encouraging the flow of information, and the informant’s private interest in his or her own safety. [United States v Martinez, 922 F2d 914, 921 (CA 1, 1991). Citations omitted.]
While we agree the district court must disclose the informer’s identity if the individual’s testimony "might be relevant to the defendant’s case and justice would best be served by disclosure,” ... we have consistently ruled that where the information sought "would be merely cumulative,” or where the informer did not participate in the illegal transaction, disclosure is not required .... [Mendoza-Salgado, supra at 1000-1001. Emphasis added.]

"In sum, we believe we fairly state the point when we say that the privilege need only give way when disclosure of the informant’s identity would be vital to a fair trial.” Martinez, supra at 921.

IV

The facts of the present case do not present that exceptional circumstance in which an in camera hearing is warranted to determine if disclosure of the informant’s identity is vital to a fair trial. As noted above, the informant neither witnessed nor participated in the assault and robbery at issue. According to a Michigan State Police incident *715report, the informant advised police that another inmate told the informant, inter alia, that it was the inmate and a third party, not the defendant, who committed the robbery and assault, and that "dog” had served as a lookout.

The defendant asserts that the informant’s testimony is essential to his defense because it calls into question both the prosecution’s allegation that it was defendant who committed the assault and robbery of the Department of Corrections employee as a principal, and whether defendant, as a lookout, possessed the requisite intent to commit murder or had knowledge that the principals possessed the specific intent to commit that crime necessary for conviction for assault with the intent to commit murder.

However, the defendant admits that the police report is, at the least, partially inculpatory. The information places the defendant, as "dog,” in the position of an aider and abettor to the offenses committed.3 The defendant argues that the informant’s testimony would undermine the prosecutor’s theory that defendant was a principal. The prosecutor’s theory is supported by the presence of defendant’s bloody fingerprint on the club used to assault the victim. The best that can be made of defendant’s contention is that the jury might have believed part of the statement (they arrested the wrong person) and disbelieved the other ("dog” was the lookout). The defendant fails to demonstrate, however, that the information is *716exculpatory and trustworthy, or essential to his defense.

The jury was given instruction on the offense of assault with intent to commit great bodily harm less than murder as a lesser included offense to the principal charge of assault with intent to commit murder. The defendant did not allege in his defense that he participated in the crime, but lacked the mens rea of intent to commit murder necessary for conviction of the greater charge. As summarized by the majority, ante at 700-702, the defendant asserted that he did not participate in the assault at all, and at most was a mere accessory after the fact. Therefore, the informant’s testimony, even where arguably exculpatory, fails to touch upon the defendant’s theory of defense. Even in those federal cases where only a "minimal threshold showing” of relevance is necessary to require in camera review, that minimal relevance must be to at least one of the defendant’s defenses. United States v Spires, 3 F3d 1234, 1238-1239 (CA 9, 1993); United States v Sai Keung Wong, 886 F2d 252, 256 (CA 9, 1989).

The majority states that the informant’s testimony, although admittedly inculpatory, might tend to "mitigate defendant’s culpability, or participation, thereby giving the jury the opportunity to return a verdict on a lesser included offense.” Ante at 709, n 11. However, as I have noted, on its face the informant’s statement to the police is that the defendant was an aider or abettor. The only possibly helpful import of admission of the informant’s testimony would be to invite the jury to return a compromise verdict that would find the defendant guilty of a lesser offense because he was not as bad as the absent actors. This evidence is irrelevant to *717defendant’s defense that he knew nothing about the crime in advance of its occurrence.4

Although "dog” is not positively identified in the informant’s statement to the police as the defendant, defense counsel does not deny that defendant is "dog.” If "dog” was not the defendant, his trial counsel would have logically argued that the informant’s statement was completely exculpatory, identifying three other persons as the perpetrators of the crime. Appellate counsel commendably admitted both in his brief and oral argument to this Court that the informant’s statement to the police was inculpatory in that defendant was identified in that statement as a lookout, aiding in the commission of the crimes. That portion of the informant’s communication therefore does not appear to be either "relevant or helpful” to the defendant’s defense of being an accessory after the fact, even if that were the proper standard by which to measure the materiality of the informant’s identity.

Finally, I find no factual or legal basis for the majority’s statement that the informer’s information may bear "on instructional and sentencing issues.” Ante at 709. The informant’s testimony would not provide any basis for an instructional issue other than aiding and abetting. Any lesser cognate offense instruction upon which it bears some relevance is inconsistent with the defendant’s theory of defense. The majority provides no precedent for the suggestion that an informant’s identity should be disclosed because of its bearing on sentencing issues. Moreover, the police report of the informant’s statement was before the trial judge and could be considered at sentencing. Disclosure of the informant’s identity adds nothing to *718the evaluation of the statement in this context. The sentencing issue is nothing more than a repetition of the argument, irrelevant for trial purposes, that a distinction can be made between highly blameworthy criminals and those of lesser culpability.

v

In summary, I find no need to return this case to the circuit court for in camera review. The substantive content of the information provided by the informant is known to both the parties, as well as the trial judge. In camera review is not warranted by a mere minimal showing of relevance and should only be authorized where the defendant has demonstrated a reasonable probability that the informant’s testimony is essential to his defense. The defendant in the present case has failed to make this demonstration of essential need. The content of the informant’s statement not only fails to advance the defendant’s position that he was, at most, an accessory after the fact to the robbery and assault, but inculpates the defendant as a participant in the crimes as a lookout. The trial court’s decision was not clearly erroneous.

I would therefore affirm the decision of the Court of Appeals denying disclosure of the informant’s privileged identity to the defendant.

Riley, J., concurred with Boyle, J.

I continue to agree with the United States Supreme Court that a plausible showing of materiality and favorability is sufficient to warrant in camera review where it is the substantive content of the information sought that is privileged. Pennsylvania v Ritchie, 480 US 39, 58, n 15; 107 S Ct 989; 94 L Ed 2d 40 (1987); United States v Valenzuela-Bernal, 458 US 858, 867; 102 S Ct 3440; 73 L Ed 2d 1193 (1982).

I acknowledge that testimony by the informant may be the only means by which the information communicated to the informant can be introduced at trial. As noted by the majority, the party allegedly making the statements about the crimes to the informant exercised his Fifth Amendment right to remain silent. Although a description of the informant’s statement is provided in a police report, the Rules of Evidence provide no means by which a defendant could introduce this hearsay information through police testimony.

This acknowledgment does not alter the course of our inquiry. The question remains whether the communication about which the informant might testify is essential to the defendant’s defense.

Pursuant to MCL 767.39; MSA 28.979:

Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.

In addition, I question whether, even if admitted, the informant’s testimony would have provided the basis for the cognate lesser included oifense instruction given.