People v. Walters , 13 Brief Times Rptr. 216 ( 1989 )

ERICKSON, Justice,

concurring in the result:

I would reverse the order dismissing the charge against defendant because the defendant made no showing that the informant was anything more than a mere tipster. Every tipster is not an informant whose identity is subject to disclosure.

The necessary foundation for the trial court’s exercise of discretion in ordering disclosure is a showing by the defendant of a reasonable basis in fact that the informant is a likely source of relevant and helpful evidence to the accused. People v. Bueno, 646 P.2d 931 (Colo.1982); People v. Langford, 191 Colo. 87, 550 P.2d 329 (1976); People v. Marquez, 190 Colo. 255, 546 P.2d 482 (1976). In my view, the identity of the informant must have at least some bearing on the ultimate issue of defendant’s guilt or innocence. See People v. Villanueva, 767 P.2d 1219 (Colo.1989) (Erickson, J., concurring.).

An order of disclosure must be supported by the record and may not rest upon speculation or conjecture. Bueno, 646 P.2d 931; Langford 191 Colo. 87, 550 P.2d 329. The defendant in this case failed to produce any evidence or make any showing that might establish a foundation for disclosure. The record reflects that the only evidence before the court regarding the informant was that a Denver police officer received a tip that a green motorcycle had been stolen, and that the people who were in possession of the motorcycle said that it was stolen. The Denver officer relayed that information to an Adams County sheriff, who in turn relayed the information to another officer. The information relied on by the detaining officer therefore was three times removed from the actual tip. There is nothing in the record indicating that the informant here was any more a witness to the crime than an anonymous bystander who reports a robbery in progress.

The only evidence in the record does not support the trial court’s finding that the person providing the information was an eye or ear witness to the theft or receipt of the stolen motorcycle. Officer Long testified that the information he received from his contact with the Denver police was that one or both of the people in possession of the motorcycle told the confidential informant that the motorcycle was stolen. Such a statement does not support a finding that the confidential informant was or even might have been an eye and ear witness to the transaction. The trial court abused its discretion when it ordered the prosecution to disclose the identity of the so-called informant and when it dismissed the charge based on the weak evidence before it. Accordingly, I concur in the reversal of the order dismissing the charge against defendant.