[Cite as State v. Calhoun, 2012-Ohio-2374.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26144
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE HOMELL T. CALHOUN COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 11 01 0027 (A)
DECISION AND JOURNAL ENTRY
Dated: May 30, 2012
WHITMORE, Presiding Judge.
{¶1} Defendant-Appellant, Homell Calhoun, appeals from the judgment of the Summit
County Court of Common Pleas. This Court affirms.
I
{¶2} On December 29, 2010, members of the Akron Police Department’s narcotics unit
observed Calhoun engage in a hand-to-hand drug transaction with a female outside Brubaker’s
Pub. The police stopped the female, Barbara Wilfred, after she left the scene and confirmed that
she had purchased heroin from Calhoun. Based on Wilfred’s admission, the drug transaction
they observed, and prior intelligence they had collected on Calhoun, the police decided to stop
Calhoun. Because Calhoun already had driven away with another woman, the police stopped the
woman’s car and conducted pat down searches. The police found heroin, syringes, and a spoon
when they searched the woman and later found approximately 25 baggies of heroin in Calhoun’s
pants. 2
{¶3} At some point after the police stopped Wilfred and confirmed that she had
purchased heroin from Calhoun, two officers decided to go to Mayflower Manor Apartment
1011. According to several police officers, several weeks before the hand-to-hand transaction
with Wilfred took place a confidential informant shared information that Calhoun kept a large
amount of drugs in that apartment. According to Calhoun, the police learned of the apartment
after they questioned him in the absence of a Miranda warning. The police searched the
apartment with the consent of Nicole Sleeth, the apartment’s tenant and Calhoun’s acquaintance.
Inside the apartment they found a safe, which Sleeth identified as Calhoun’s. The police then got
a warrant for the safe and searched it. The safe contained over 360 grams of heroin and $19,000.
{¶4} A grand jury indicted Calhoun on numerous drug charges, several of which arose
from the contents of the safe. Calhoun filed a motion to suppress, and the court conducted a
suppression hearing. Numerous times during the course of the suppression hearing, Calhoun
asked the court to order the State to disclose the identity of the confidential informant who
allegedly told the police about Apartment 1011. Calhoun averred that (1) the police actually
learned about the apartment from the answers they elicited in violation of his Miranda warnings,
and (2) the success of his motion hinged upon testing the veracity of the alleged informant. The
trial court refused to order the disclosure of the informant and denied Calhoun’s motion to
suppress. Calhoun ultimately pleaded no contest to reduced charges and received nine years in
prison.
{¶5} Calhoun now appeals from the trial court’s denial of his motion to disclose the
identity of the informant and raises one assignment of error for our review. 3
II
Assignment of Error
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO DISCLOSE THE IDENTITY OF A CONFIDENTIAL INFORMANT[.]
{¶6} In his sole assignment of error, Calhoun argues that the trial court erred when it
refused to order the State to disclose the identity of its informant. We disagree.
{¶7} “This Court will not disturb a trial court’s ruling on a motion to disclose a
confidential informant’s identity absent an abuse of discretion.” State v. Smith, 9th Dist. No.
21069, 2003-Ohio-1306, ¶ 62. An abuse of discretion means that the trial court was
unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
{¶8} “The [S]tate has a privilege to withhold from disclosure the identities of those
who give information to the police about crimes.” State v. Bays, 87 Ohio St.3d 15, 24 (1999).
“The purpose of the privilege is the furtherance and protection of the public 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, encourage them to perform that obligation.” [State v. Roe, 26 Ohio St.2d 243, 246 (1971).]
State v. Williams, 4 Ohio St.3d 74, 76 (1983). Even so, the privilege gives way “when the
testimony of the informant is vital to establishing an element of the crime or would be helpful or
beneficial to the accused in preparing or making a defense to criminal charges.” Id. at syllabus.
A request for disclosure requires a trial court to balance the confrontation rights of the accused
against the State’s privilege to protect its citizen informants in light of the facts and
circumstances of each case. Smith at ¶ 63. If disclosure “would not be helpful or beneficial to
the accused, the identity of the informant need not be revealed.” Williams at 76. “The defendant
bears the burden of establishing the need for disclosure.” Smith at ¶ 63. 4
{¶9} Three officers testified at the suppression hearing, and all three stated that
Calhoun was not the source of the information about Apartment 1011. Sergeant Jason Malick
and Detective Michael Zimcosky testified that the search of Apartment 1011 commenced before
Calhoun was even taken into custody. Detective Zimcosky specified that he received
information about Calhoun from a confidential informant a few weeks before the search
occurred. Specifically, a controlled buy took place between the confidential informant and
Calhoun in early December, and Detective Zimcosky gained information from that exchange.
He testified that he never spoke with Calhoun on the day of his arrest, but decided to act upon the
informant’s tip and go to Apartment 1011 after he learned that his fellow officer had witnessed
Calhoun sell drugs to Wilfred.
{¶10} Sergeant Malick confirmed that he gave Detective Zimcosky permission to go to
Mayflower Manor before the police stopped Calhoun. He testified that the information about the
apartment came from Detective Zimcosky’s confidential source. Indeed, Sergeant Malick stated
that he did not even know which apartment number Detective Zimcosky planned on
investigating because it was Detective Zimcosky who had the connection to the informant.
Sergeant Malick further testified that once the police brought Calhoun back to the station, he told
Calhoun that officers were searching Apartment 1011. Sergeant Malick observed that Calhoun
visibly reacted to the news and “seemed very surprised that we knew about the apartment.”
{¶11} Calhoun testified to a radically different version of events. He testified that
officers handcuffed him and asked him questions about his address without Mirandizing him.
He further claimed that, once he told the officers about Apartment 1011, they kept him
handcuffed on the scene for approximately 45-60 minutes while they intermittently searched the
apartment and returned to question him further about the apartment and the safe they found. 5
Calhoun also claimed that one of the officers threatened to kick him in the stomach during the
incident.
{¶12} The trial court denied Calhoun’s motion to disclose after concluding that the
informant merely provided information concerning Calhoun’s offense. See Bays, 87 Ohio St.3d
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Calhoun, 2012-Ohio-2374.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26144
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE HOMELL T. CALHOUN COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 11 01 0027 (A)
DECISION AND JOURNAL ENTRY
Dated: May 30, 2012
WHITMORE, Presiding Judge.
{¶1} Defendant-Appellant, Homell Calhoun, appeals from the judgment of the Summit
County Court of Common Pleas. This Court affirms.
I
{¶2} On December 29, 2010, members of the Akron Police Department’s narcotics unit
observed Calhoun engage in a hand-to-hand drug transaction with a female outside Brubaker’s
Pub. The police stopped the female, Barbara Wilfred, after she left the scene and confirmed that
she had purchased heroin from Calhoun. Based on Wilfred’s admission, the drug transaction
they observed, and prior intelligence they had collected on Calhoun, the police decided to stop
Calhoun. Because Calhoun already had driven away with another woman, the police stopped the
woman’s car and conducted pat down searches. The police found heroin, syringes, and a spoon
when they searched the woman and later found approximately 25 baggies of heroin in Calhoun’s
pants. 2
{¶3} At some point after the police stopped Wilfred and confirmed that she had
purchased heroin from Calhoun, two officers decided to go to Mayflower Manor Apartment
1011. According to several police officers, several weeks before the hand-to-hand transaction
with Wilfred took place a confidential informant shared information that Calhoun kept a large
amount of drugs in that apartment. According to Calhoun, the police learned of the apartment
after they questioned him in the absence of a Miranda warning. The police searched the
apartment with the consent of Nicole Sleeth, the apartment’s tenant and Calhoun’s acquaintance.
Inside the apartment they found a safe, which Sleeth identified as Calhoun’s. The police then got
a warrant for the safe and searched it. The safe contained over 360 grams of heroin and $19,000.
{¶4} A grand jury indicted Calhoun on numerous drug charges, several of which arose
from the contents of the safe. Calhoun filed a motion to suppress, and the court conducted a
suppression hearing. Numerous times during the course of the suppression hearing, Calhoun
asked the court to order the State to disclose the identity of the confidential informant who
allegedly told the police about Apartment 1011. Calhoun averred that (1) the police actually
learned about the apartment from the answers they elicited in violation of his Miranda warnings,
and (2) the success of his motion hinged upon testing the veracity of the alleged informant. The
trial court refused to order the disclosure of the informant and denied Calhoun’s motion to
suppress. Calhoun ultimately pleaded no contest to reduced charges and received nine years in
prison.
{¶5} Calhoun now appeals from the trial court’s denial of his motion to disclose the
identity of the informant and raises one assignment of error for our review. 3
II
Assignment of Error
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO DISCLOSE THE IDENTITY OF A CONFIDENTIAL INFORMANT[.]
{¶6} In his sole assignment of error, Calhoun argues that the trial court erred when it
refused to order the State to disclose the identity of its informant. We disagree.
{¶7} “This Court will not disturb a trial court’s ruling on a motion to disclose a
confidential informant’s identity absent an abuse of discretion.” State v. Smith, 9th Dist. No.
21069, 2003-Ohio-1306, ¶ 62. An abuse of discretion means that the trial court was
unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
{¶8} “The [S]tate has a privilege to withhold from disclosure the identities of those
who give information to the police about crimes.” State v. Bays, 87 Ohio St.3d 15, 24 (1999).
“The purpose of the privilege is the furtherance and protection of the public 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, encourage them to perform that obligation.” [State v. Roe, 26 Ohio St.2d 243, 246 (1971).]
State v. Williams, 4 Ohio St.3d 74, 76 (1983). Even so, the privilege gives way “when the
testimony of the informant is vital to establishing an element of the crime or would be helpful or
beneficial to the accused in preparing or making a defense to criminal charges.” Id. at syllabus.
A request for disclosure requires a trial court to balance the confrontation rights of the accused
against the State’s privilege to protect its citizen informants in light of the facts and
circumstances of each case. Smith at ¶ 63. If disclosure “would not be helpful or beneficial to
the accused, the identity of the informant need not be revealed.” Williams at 76. “The defendant
bears the burden of establishing the need for disclosure.” Smith at ¶ 63. 4
{¶9} Three officers testified at the suppression hearing, and all three stated that
Calhoun was not the source of the information about Apartment 1011. Sergeant Jason Malick
and Detective Michael Zimcosky testified that the search of Apartment 1011 commenced before
Calhoun was even taken into custody. Detective Zimcosky specified that he received
information about Calhoun from a confidential informant a few weeks before the search
occurred. Specifically, a controlled buy took place between the confidential informant and
Calhoun in early December, and Detective Zimcosky gained information from that exchange.
He testified that he never spoke with Calhoun on the day of his arrest, but decided to act upon the
informant’s tip and go to Apartment 1011 after he learned that his fellow officer had witnessed
Calhoun sell drugs to Wilfred.
{¶10} Sergeant Malick confirmed that he gave Detective Zimcosky permission to go to
Mayflower Manor before the police stopped Calhoun. He testified that the information about the
apartment came from Detective Zimcosky’s confidential source. Indeed, Sergeant Malick stated
that he did not even know which apartment number Detective Zimcosky planned on
investigating because it was Detective Zimcosky who had the connection to the informant.
Sergeant Malick further testified that once the police brought Calhoun back to the station, he told
Calhoun that officers were searching Apartment 1011. Sergeant Malick observed that Calhoun
visibly reacted to the news and “seemed very surprised that we knew about the apartment.”
{¶11} Calhoun testified to a radically different version of events. He testified that
officers handcuffed him and asked him questions about his address without Mirandizing him.
He further claimed that, once he told the officers about Apartment 1011, they kept him
handcuffed on the scene for approximately 45-60 minutes while they intermittently searched the
apartment and returned to question him further about the apartment and the safe they found. 5
Calhoun also claimed that one of the officers threatened to kick him in the stomach during the
incident.
{¶12} The trial court denied Calhoun’s motion to disclose after concluding that the
informant merely provided information concerning Calhoun’s offense. See Bays, 87 Ohio St.3d
at 25, quoting 3 LaFave & Israel, Criminal Procedure, Section 23.3, at 19 (1984) (“‘[W]here the
informant merely provided information concerning the offense,’ the courts ‘have quite
consistently held that disclosure is not required.’”). In so holding, the court noted that the
informant was not a witness to or participant in any of the transactions relevant to the charges
and did not provide information vital to establishing any particular element of the charges. The
court determined that Calhoun’s motion “center[ed] only upon his need to raise collateral
credibility challenges to the testimony of police officers concerning the details of his arrest * *
*.”
{¶13} Calhoun maintains that the disclosure of the confidential informant’s identity is
the only way to resolve “material issue[s] of fact” in this case because only through the
informant’s testimony is it possible to know how the police learned of his connection to
Apartment 1011. The fact of the matter is, however, that either the police learned about the
apartment from an informant or they learned about it from Calhoun. All three police officers
maintained that the information came from the informant, and Calhoun maintained it came from
him. The testimony of the informant only would have added to or detracted from the credibility
of the officers at the suppression hearing. As the trial court properly noted, the informant was
not a witness to any of the events that transpired on the day of Calhoun’s arrest. Once the police
went to Apartment 1011 they conducted a valid search of its contents and the safe that led to the
charges at issue here. “The revelation of the name of the informer and the information supplied 6
by him [or her] would not alter the fact of defendant’s guilt. And a mere desire to test the
credibility and reliability of the informer is hardly a compelling consideration in the
circumstances narrated.” State v. Beck, 175 Ohio St. 73, 77 (1963), rev’d on other grounds, 379
U.S. 89 (1964). In reviewing the record, we cannot conclude that the trial court abused its
discretion by determining that the informant “merely provided information concerning the
offense” to the police. Bays at 25, quoting 3 LaFave & Israel at 19, Section 23.3. As such, the
court did not err by denying Calhoun’s motion to disclose. Calhoun’s sole assignment of error is
overruled.
III
{¶14} Calhoun’s sole assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30. 7
Costs taxed to Appellant.
BETH WHITMORE FOR THE COURT
DICKINSON, J. BELFANCE, J. CONCUR.
APPEARANCES:
DONALD J. MALARCIK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.