State v. Petty

2023 Ohio 1146

• Court: Ohio Court of Appeals
• Decided: April 6, 2023
• Docket: 111930
• Status: Published

Opinion

[Cite as State v. Petty, 2023-Ohio-1146.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellant, : No. 111930 v. :

LAMAR PETTY, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: April 6, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-667718-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Ayoub Dakdouk, Alaina Hagans, and Anthony T. Miranda, Assistant Prosecuting Attorneys, for appellant.

Jeffrey S. Richardson, for appellee.

LISA B. FORBES, J.:

In this accelerated appeal, the state of Ohio (“the State”) appeals the

trial court’s journal entry granting Lamar Petty’s (“Petty”) motion to disclose identity of informant. After reviewing the facts of the case and pertinent law, we

reverse the trial court’s decision.

I. Facts and Procedural History

On February 7, 2022, Cleveland Police arranged a controlled buy of

drugs between a confidential informant (“CI”) and a man in a black Chevy Equinox.

After the controlled buy took place, the man in the Equinox drove away, and the

police followed him, then pulled him over. Police found drugs and a gun on the man,

who was later identified as Petty.

The case information form that the police filed states the following

under “Details of Offense”: “On Monday, February 7, 2022, at 1830 hours, and at

the location of 3621 W47, the defendant, [Petty] knowingly possessed over 5 grams

of heroin and 5 grams of crack along with a loaded hand gun.” On March 1, 2022,

Petty was indicted with seven felonies: two counts of having weapons while under

disability, improperly handling firearms in a motor vehicle, two counts of drug

trafficking, and two counts of drug possession.

On June 16, 2022, Petty filed a motion to disclose identity of

informant. In this motion, Petty summarily argued that he “may consider an

entrapment defense * * *.” The court held a hearing on Petty’s motion on

September 7, 2022, after which the court granted the motion. This court granted

the State leave to appeal from the trial court’s decision. II. Motion to Disclose C.I.’s Identity

The Ohio Supreme Court has held that “the identity of an informant

must be revealed to a criminal defendant 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.” State v. Williams, 4

Ohio St.3d 74, 77, 446 N.E.2d 779 (1983). “[T]he burden is on the defendant to show

that the need for the testimony of the informant outweighs the government’s interest

in keeping the identity of the informant secret.” State v. Brown, 64 Ohio St.3d 649,

653, 597 N.E.2d 510 (1992). Furthermore, this court has held that “the defendant

must set forth more than mere speculation that ‘the informer might somehow be of

some assistance in preparing the case.’” State v. Evans, 8th Dist. Cuyahoga

No. 101485, 2015-Ohio-1022, ¶ 26, quoting State v. Parsons, 64 Ohio App.3d 63,

69, 580 N.E.2d 800 (4th Dist.1989).

We review a trial court’s decision regarding disclosure of a CI’s

identity for an abuse of discretion. See State v. Garcia, 8th Dist. Cuyahoga

No. 67858, 1995 Ohio App. LEXIS 3467 (Aug. 24, 1995).

III. Hearing on Motion to Disclose CI’s Identity

The hearing at which counsel presented argument revealed the

following.

A. Argument from Defense Counsel

According to defense counsel, the CI called a person known as “Cash”

to arrange a “controlled buy” of “some narcotics.” The details of the transaction, including the quantity of drugs and the dollar amount of the sale, are not known.

The CI was driven to the agreed-upon location. There, he got “in a black Chevy

Equinox with the person they believe to be Cash.” According to Petty’s counsel,

“there is simply no way * * * that the undercover detectives could hear or see what

was going on inside of that car.” Counsel stated that “no wire was affixed to the CI,

no video recording device. So whatever occurred in the car is not observable to

anyone who might just be watching.”

Defense counsel stated that the CI “report[ed] back to the detectives

who conveyed him to this buy site * * *. It’s indicated that he turns over some

amount of drugs. Again it’s not stated how much, what they are believed to be, but

he indicates that * * * he has purchased these drugs from the person in that car that

he knows only as Cash.” According to Petty’s counsel, the CI is the only person who

can identify Petty as the person he bought drugs from.

Petty drove away after the controlled buy. Police pulled Petty’s

vehicle over in front of a house on W. 47th Street. Petty’s “vehicle is searched and

the detectives recover a fairly low weight of suspected drugs and there I believe is a

.380 handgun in the coat pocket of the person that * * * they’ve identified as * * *

Petty.”

Counsel explained, and the trial court agreed, that “controlled buys

are not usually conducted for the benefit of creating a criminal charge. * * * They

are generally done as a means of getting a search warrant normally for a house.”

Counsel argued that the instant case “is different but for the involvement of the [CI], there would have been no legal basis to engage * * * Petty on the street as he was

engaged.”

Counsel further argued that the CI’s identity would help Petty’s

defense as follows:

I don’t know what happened in [Petty’s] car, * * * and I don’t know what happened before that CI entered [Petty’s] car.

***

I don’t know [if] planted is necessarily the right word, * * * but I have no reason to rule out what may have occurred in that car in terms of asking him to hold something, asking him to do something for him.

And again, there’s no record in discovery of anything specific relating to this [CI].

I don’t know how he became a CRI versus a CI.1 There’s no record of his past interaction with law enforcement and I’m not aware there’s any video of what occurs pre-controlled buy.

But this is a different situation when within seconds or minutes of interacting with a police informant [Petty] is stopped and searched and there was no monitoring of what happened in that car. It could not have been seen. It could not have been heard.

1 As stated, “CI” stands for confidential informant. “CRI” stands for confidential reliable informant. “The title of CRI is the highest of a gradient of titles given to reflect an informant’s veracity. The gradient ranges from the least reliable source — an anonymous tipster — to the most reliable — a CRI. Informants can only gain the title of CRI if they relay information that secures a certain number of arrests, indictments, and convictions, among other things.” State v. Beltran, 8th Dist. Cuyahoga Nos. 86359 and 86360, 2006-Ohio-1085, ¶ 36. B. Argument from the State

According to the prosecutor, in the case at hand “a CRI was used to

do a controlled buy. Prior to doing the controlled buy, the CRI was checked and he

was cleared of any contraband.” The police “sent the CRI in with identifiable money.

Detectives were watching the CRI from that point on up until the buy and after the

buy.” According to the State, the CRI met with Cleveland Police Detective Larry

Smith after the buy and provided “what he had just purchased from Cash, AKA * * *

Petty.” The police pulled Petty over as he was driving the Chevy Equinox in which

the controlled buy just took place. Police asked Petty to step out of the vehicle, and

he did. Police found a “.380 handgun” in Petty’s right pocket and “two * * * different

bags of * * * drugs on his person.” Police also recovered two cell phones.

The State argued that “the fact that the actual buys themselves

[involving the CI] were not charged in this case” weighs in favor of not disclosing the

CI’s identity. Additionally, the prosecutor stated the following regarding the public

policy behind withholding the identity of CIs: “informers often frequent the vicinity

where crime is planned and the revelation of an informer’s name would not only

destroy his access to information concerning criminal activities, but might also

result in his sudden demise, thereby discouraging other[s] from becoming informers

and coming forward.”

IV. The Trial Court’s Findings

After the arguments were presented at the motion hearing, the court

acknowledged that this case involved a balancing test of “the accused[’s] right to confront and cross-examine his accuser against the public interest in protecting the

flow of information regarding criminal activity to law enforcements.” The court

found that this case was “unique” because whether, and how, the CI was allegedly

searched before getting into Petty’s vehicle “is a question up to the defense and the

cross-examination of the detective to see how accurately he was searched, but that’s

a question for the jury to determine.”

The court stated that the CI “leaves [Petty’s] car and * * * only minutes

later [Petty’s] pulled over based on the [CI] coming back with buy money and drugs.”

The court determined that “[t]he issue here has now become is the informant a

necessary material witness in this scenario.” The court infers that Petty’s argument

is as follows: “we need this CI because we believe the CI planted, brought the drugs

to the car or the gun to the car.” The court concluded that “based on what I heard

* * *, I’m going to order the State to disclose the CI for purposes of this case to allow

[defense counsel] to proceed with his defense of * * * Petty. And I do believe the CI

is material to the facts in this case.”

V. Analysis

A. Williams — First Prong

We start with the first prong of the Williams test — whether “the

testimony of the informant is vital to establishing an element of the crime.” In the

case at hand, Petty was charged with nine counts of various felonies related to a gun

and drugs that police found on his person after they pulled him over. The police

officers found these items, as noted in the case information form that was filed in conjunction with this case, after the CI served his purpose. In other words, the CI’s

identity, and thus testimony, is not needed to establish the elements of the offenses

with which Petty was charged. See Williams, 4 Ohio St.3d at 74, 446 N.E.2d 779

(holding that disclosure of the identity of the CI was not warranted when the crime

“was witnessed, in its entirety, by a police officer in close proximity to the event”);

State v. Payne, 11th Dist. Lake No. 2004-L-118, 2005-Ohio-7043, ¶ 41 (Disclosure

of the CI was not required “where the informant did not actively participate in the

criminal activity, or where the informant’s role is that of a mere tipster.”).

The instant case is not a case in which the CI’s testimony would be

necessary to establish the crimes at issue because Petty was not charged with selling

drugs to the CI. Accordingly, Petty failed to show that the CI’s identity should be

revealed under the first prong of Williams.

B. Williams — Second Prong

Turning to the second prong of the Williams test — whether the CI’s

identity “would be helpful or beneficial to the accused in preparing or making a

defense to criminal charges” — we focus on whether Petty set forth more than mere

speculation at the hearing. See Evans, 8th Dist. Cuyahoga No. 101485, 2015-Ohio-

1022, at ¶ 26 (requiring more than mere speculation that the identity of the

informant might be helpful). In State v. Butler, 9 Ohio St.3d 156, 157, 459 N.E.2d

536 (1984), the Ohio Supreme Court held that “the trial judge was correct in refusing

to order divulgence of the informant’s identity.” The Butler Court concluded that

the defendant, in addition to the CI, “knew the details of the conversations between [himself] and the informant * * *. The trial judge was not required to speculate as

to the specifics of these conversations and relate them to the elements of

entrapment.” Id.

Petty’s argument that the CI’s identity would help his defense is vague

and undeveloped. Specifically, counsel stated that he did not know what happened

when the CI was in Petty’s car, and he had “no reason to rule out what may have

occurred in that car in terms of asking him to hold something, asking him to do

something.” See Garcia, 8th Dist. Cuyahoga No. 67858, 1995 Ohio App. LEXIS 3467

(“The mere allegation of entrapment is not, alone, sufficient to justify allowing the

appellant access to the identity of the informant.”).

In the case at hand, defense counsel further argued that “if there is

not a police agent able to describe what occurred between the informant and the

suspect whether it be by recording, video, proximity, if what occurred and the actual

exchange cannot be described, then the informant must be disclosed.” This

argument is not supported by any legal authority. First, we note that the “actual

exchange” between the CI and Petty is not the basis of the criminal charges in this

case. Second, defense counsel’s argument is not part of the test that Ohio courts

apply when ruling on a motion to disclose the identity of a CI.

Defense counsel additionally suggested that the court should have

held an in camera review to determine whether the CI’s identity would have been

helpful. However, the Ohio Supreme Court has held that an “‘in camera hearing is

necessary only when “the defendant makes an initial showing that the confidential informant may have evidence that would be relevant to the defendant’s

innocence.”’” State v. Bays, 87 Ohio St.3d 15, 25-26, 716 N.E.2d 1126 (1999),

quoting State v. Allen, 27 Wash.App. 41, 48, 615 P.2d 526 (1980), quoting State v.

Potter, 25 Wash.App. 624, 628 611P.2d.1282 (1980).

Upon review, we find that Petty failed to show, under the second

prong of the Williams test, that the CI’s identity would be helpful or beneficial to his

defense, because, at the time of the motion hearing, his arguments were no more

than speculation. Petty knows what happened in his car. The police officers know

what happened with the CI prior to the transaction that occurred in Petty’s car. Petty

does not need the CI’s identity to, at least, explore these issues prior to developing a

theory that is more than speculation.

VI. Conclusion

In the case at hand, Petty failed to show, under both prongs of the

Williams test, that the CI’s testimony was necessary or would be beneficial to his

case. Furthermore, Petty failed to meet his burden to show that the need for the CI’s

testimony “outweighs the government’s interest in keeping the identity of the

informant a secret.” Brown, 64 Ohio St.3d at 653, 597 N.E.2d 510. Petty’s failure to

meet the Williams and Brown tests does not warrant disclosure of the CI’s identity.

See Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463,

¶ 35 (“[T]he common understanding of what constitutes an abuse of discretion [is]

a court exercising its judgment, in an unwarranted way, in regard to a matter over

which it has discretionary authority.”). Accordingly, we find that the trial court abused its discretion by

granting Petty’s motion to disclose the identity of the CI, given the information and

arguments that were presented at the motion hearing. The State’s sole assignment

of error is sustained.

Judgment reversed. Case remanded to the trial court for further

proceedings consistent with this opinion.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

LISA B. FORBES, JUDGE

SEAN C. GALLAGHER, J., CONCURS; MARY EILEEN KILBANE, P.J., DISSENTS

MARY EILEEN KILBANE, P.J., DISSENTING:

I respectfully dissent from the majority opinion.

As correctly stated by the majority, the issue presented to this court

— the trial court’s decision on a motion to disclose a CI’s identity — is subject to an

abuse of discretion standard. Bays, 87 Ohio St.3d 15, 716 N.E.2d 1126. “Abuse of discretion is an extremely high standard; it demands that

the trial court exhibited a ‘perversity of will, passion, prejudice, partiality, or moral

delinquency.’” Devito v. Grange Mut. Cas. Co., 2013-Ohio-3435, 996 N.E.2d 547,

¶ 21 (8th Dist.) (Jones, J., dissenting), quoting Pons v. Ohio State Med. Bd., 66 Ohio

St.3d 619, 621, 614 N.E.2d 748 (1993), citing State v. Jenkins, 15 Ohio St.3d 164,

222, 473 N.E.2d 264 (1984). “Abuse-of-discretion review is deferential and does not

permit an appellate court to simply substitute its judgment for that of the trial

court.” State v. Blanton, 8th Dist. Cuyahoga No. 109294, 2021-Ohio-65, ¶ 26, citing

State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.

A trial court must analyze the facts of each case to determine whether

disclosure of an informant’s identity is warranted. Williams, 4 Ohio St.3d at 76, 446

N.E.2d 779. Here, the trial court conducted a hearing and specifically found the

informant’s identity was relevant due to “the circumstances involved in this unique

case.” Tr. 31. The state represented that the police searched the CI before the CI

entered Petty’s vehicle but there was no video or audio recording of that occurrence.

No one except the CI and Petty were privy to the interactions that occurred within

the confines of Petty’s vehicle. The trial court determined that the CI was a material

witness who could testify as to whether he possessed drugs and/or a firearm when

he entered Petty’s vehicle. Based upon the unique facts in this matter and the

application of the abuse of discretion standard, I would defer to the trial court’s

judgment.

For these reasons, I respectfully dissent.