dissenting:
I do not agree Avith the court’s conclusion that the trial judge committed reversible error in failing to allow the defendant’s motion seeking disclosure of the informant’s identity. For that reason, I respectfully dissent.
The majority acknowledges that defense counsel did in fact know in advance of trial that the defendant’s acquaintance Stevenson acted as the confidential informant in this case. (139 Ill. 2d at 378-79.) Nonetheless, the majority believes that the State was required to formally disclose those facts to the defense and, moreover, that a new trial is necessary because the trial judge failed to grant the defendant’s request for that information. As I shall demonstrate, any error accruing from the trial court’s refusal to order formal disclosure of the informant’s identity could only have been harmless.
The identity of a confidential informant is ordinarily privileged. Discussing the circumstances when disclosure may be required, the Supreme Court has 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 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.” (Roviaro v. United States (1957), 353 U.S. 53, 62, 1 L. Ed. 2d 639, 646, 77 S. Ct. 623, 628-29.)
Thus, disclosure of an informant’s identity is ordered not for its own sake but so that an accused may prepare a defense.
Assuming that the present defendant was entitled to disclosure of the informant’s identity, I do not believe that he could have been prejudiced by the trial court’s refusal to order that the information be revealed. The majority fails to explain what additional information the defense would have acquired from formal disclosure of the informant’s identity. As the record demonstrates, and the majority acknowledges (139 Ill. 2d at 378-79), before trial, defense counsel was aware of Stevenson’s role in the offense and of his identity as the informant. Defense counsel’s explanation of the entrapment defense illustrates fully his understanding of Stevenson’s involvement. Indeed, the defendant intended to call Stevenson as a witness at trial, and Stevenson was served with a subpoena to that effect. There is no contention here that Stevenson’s failure to comply with the subpoena was attributable in any way to the conduct of the prosecution. Formal disclosure of the informant’s identity would not have provided any information that the defense did not already have, and the defendant could not have been prejudiced by the trial court’s failure to grant his motion seeking that relief.
Thus, even if the informant’s identity were not privileged and would be subject to disclosure, the circumstances in the present case demonstrate that the defendant already had the information he was seeking. On this record, any error in failing to order disclosure of the informant’s identity must certainly have been harmless. In similar circumstances other courts have found nondisclosure of an informant’s identity to be harmless error (see, e.g., Williams v. Brown (5th Cir. 1980), 609 F.2d 216, 220-21; People v. Jarrett (1965), 57 Ill. App. 2d 169; State v. Chambers (Utah 1985), 709 P.2d 321; State v. Haverty (W. Va. 1980), 267 S.E.2d 727) and I would reach the same conclusion here.
Nor can it be said that the State was obliged to produce the informant, once it became evident that he would not comply with the defendant’s subpoena. Relying on People v. Stumpe (1979), 80 Ill. App. 3d 158, the appellate court believed that requiring the prosecution to disclose the informant’s identity would have also placed on the State the responsibility of ensuring the informant’s appearance at trial. Such a burden should not be imposed here, for the defendant already knew the informant’s identity and the individual was under subpoena, issued at the defendant’s request. The informant was equally available to both parties, and the State should not be held to the duty of securing the informant’s attendance at trial simply because the informant failed to comply with the subpoena issued at the defendant’s behest. Because the informant had already been located and served, the State was not required to undertake its own efforts at producing him for trial. Cf. People v. Holmes (1990), 135 Ill. 2d 198 (informant could not be located).
In the present case, the defendant already had the information he was seeking from the State and, moreover, had in fact subpoenaed the informant to appear as a witness at trial. I would hold that any error arising from the failure to order formal disclosure of the informant’s identity was harmless and that the State was not required to ensure the informant’s presence at trial, once it became clear that he would not comply with the subpoena that had already been issued.