State v. Williams

446 N.E.2d 779, 4 Ohio St. 3d 74, 4 Ohio B. 196, 1983 Ohio LEXIS 669

Opinions

Celebrezze, C.J.

This appeal poses the issue of whether the state, under the circumstances of this case, was required to disclose the identity of the informant to appellee, a criminal defendant.

Appellee argues that his rights to a fair trial and to confront his accusers were violated by the trial court’s ruling that the informant would remain anonymous. On the other hand, the state suggests that the informant’s testimony would not be helpful in preparing a defense and that the state’s interest in protecting the identity of the informant is paramount.

In State v. Phillips (1971), 27 Ohio St. 2d 294 [56 O.O.2d 174], we held that resolution of the question of whether the identity of an informant must be disclosed involves the balancing of competing interests. With respect to the criminal defendant, the fairness of the trial of an accused depends, in large part, on the ability of the defendant to confront his accusers. A fundamental component of the right to confront one’s accusers is the opportunity to cross-examine the witnesses against him. Pointer v. Texas (1965), 380 U.S. 400. Despite the importance of the right of confrontation, under certain circumstances that right will be subject to the state’s right to preserve the anonymity of informants. The underlying rationale for this “informant’s privilege” was well-stated by Justice Corrigan in State v. Roe (1971), 26 Ohio St. 2d 243, 246 [55 O.O.2d 480]:

“* * * 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.” See Roviaro v. United States (1957), 353 U.S. 53, 59.

Generally, when the degree of participation of the informant is such that the informant virtually becomes a state’s witness, the balance swings in favor of requiring disclosure of the informant’s identity. Conversely, where disclosure would not be helpful or beneficial to the accused, the identity of the informant need not be revealed. State v. Beck (1963), 175 Ohio St. 73 [23 O.O.2d 377], reversed on other grounds (1964), 379 U.S. 89; State v. Roe, supra, at page 247; State v. Phillips, supra, at page 298. Accord Roviaro v. United States, supra.

The balance which must be struck between these competing interests is indeed a fine and delicate one which of necessity dictates a case by case analysis. We find that the facts of the case at bar do not compel disclosure of the identity of this informant.

In State v. Phillips, supra, we required disclosure of an informant’s identity in the context of an illegal drug transaction. However, Phillips clearly represents a situation distinct from the instant cause and does not mandate a similar result. The key difference between Phillips and today’s case is that in Phillips, the informant and the accused completed the drug transaction in a motel room out of the sight of the police. In that case, the state attempted to base a prosecution solely on the testimony of a police officer who saw the informant enter the motel room with marked money and exit with narcotics supposedly purchased therein, without disclosing the identity of the informant. One can easily see the inherent dangers in a situation where: the informant has made a drug purchase in association with a police investigation, the state seeks to preserve the identity of the informant, and there are no other possible witnesses to the transaction other than the informant and the accused. The case sub judice presents no such inherent dangers.

In the case at bar, the testimony óf Mr. K is in no way as critical as that of the informant in Phillips. Here, the transaction between appellee and the informant was witnessed, in its entirety, by a police officer in close proximity to the event. Moreover, the police officer testified that, at all times, Mr. K’s hands were in plain sight so as to eliminate the possibility that Mr. K may have switched the packet given him by appellee for one containing cocaine. Thus, this is not a situation where proof of an element of the crime is dependent upon the testimony of the informant. It therefore cannot be said that this informant, without testifying, was actually a witness for the prosecution who was not subject to cross-examination.

Additionally, appellee exercised his prerogative not to present a defense and his privilege not to take the stand on his own behalf. Even so, appellee suggests that the testimony of the informant would be relevant to this defense simply because the informant was the man who had been nearest to him and took part in the transaction. Appellee also contends that the informant’s testimony may have been relevant to a defense of entrapment or mistaken identity. We note initially that Detectives Nagy, Copeland and Rospierski all positively identified appellee as the individual in the car with Mr. K when the drug transaction took place. Consequently, there is more than sufficient record evidence that appellee was the individual seated in the informant’s car. With respect to the spectre of a possible entrapment defense, we are not inclined to speculate on the relevance of the informant’s testimony since the defense of entrapment was not raised at trial.

For the foregoing reasons, we hold 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. However, the circumstances of this case do not warrant the disclosure of the identity of the informant who participated in the transaction which led to appellee’s arrest and convictions.

Accordingly, the judgment of the court of appeals is reversed and the convictions are reinstated.

Judgment reversed.

Sweeney, Locher, Holmes, C. Brown and J. P. Celebrezze, JJ., concur. W. Brown, J., dissents.