State of Indiana v. Justin Jones ( 2020 )

FILED
Nov 02 2020, 9:19 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr. David R. Hennessy
Attorney General of Indiana Indianapolis, Indiana
Angela N. Sanchez
Assistant Section Chief, Criminal
Appeals
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, November 2, 2020
Appellant-Plaintiff, Court of Appeals Case No.
20A-CR-664
v. Appeal from the Marion Superior
Court
Justin Jones, The Honorable Grant W. Hawkins,
Appellee-Defendant. Judge
Trial Court Cause No.
49G05-1802-F2-5853
Najam, Judge.
Statement of the Case
[1] The State appeals the trial court’s order that the State produce a confidential
informant (“CI”) for an interview with Justin Jones’ counsel. The State raises
one issue for our review, namely, whether the court abused its discretion when
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it ordered that Jones’ counsel be permitted to conduct a face-to-face interview
with the CI.
[2] We affirm.
Facts and Procedural History
[3] On June 3, 2017, Sarah Thompson was at home with her two small children.
At some point that night, two males, one masked and one unmasked, kicked in
the door to her home. The men “tied [Thompson] up” and “assaulted her”
while they passed a handgun “back and forth.” Appellant’s App. Vol. 2 at 28.
The men held Thompson and her children for several hours while they searched
the house. Ultimately, the men stole jewelry, shoes, purses, gaming consoles,
and a vehicle. After the men had left, Thompson was able to provide
Indianapolis Metropolitan Police Department (“IMPD”) Detective James Hurt
with a description of the unmasked man.
[4] The next day, IMPD officers responded to a report that shots had been fired at
a different location, and they discovered the stolen vehicle. Officers also found
a cell phone next to the vehicle and a black mask, a baseball hat, and a flip
phone inside the vehicle. Officers were able to determine that the cell phone
they had found next to the car belonged to Jones.
[5] On August 10, IMPD Lieutenant Leo George, who was investigating a group
of “serial burglars” in Indianapolis, spoke with a CI who had information about
a home invasion. Appellant’s App. Vol. 3 at 165. At the time, the CI was in
custody following an arrest for an unrelated crime. The CI provided Lieutenant
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George with “several specific details” about the offense that were only known
to the victim and law enforcement officers. Appellant’s App. Vol. 2 at 30. The
CI informed Lieutenant George that David Johnson and Jimmy Hapner were
involved in the offense and that an individual known as Haughville Cody had
planned the robbery.
[6] Lieutenant George recognized Johnson as a member of the group he was
investigating. He also determined that Thompson’s description of the
unmasked assailant matched a booking photograph of Hapner. And Lieutenant
George learned that Jones, whose middle name is Cody, had a connection to
the area of Indianapolis known as Haughville. Lieutenant George then
forwarded the information regarding the possible subjects to the officers who
were investigating the robbery at Thompsons’ home. Lieutenant George did
not provide any information regarding the CI’s identity to the investigating
officers, and the investigating officers never spoke with the CI.
[7] In April 2018, the State charged Jones with burglary, as a Level 2 felony;
robbery, as a Level 3 felony; criminal confinement, as a Level 3 felony;
kidnapping, as a Level 3 felony; kidnapping, as a Level 5 felony; and auto theft,
as a Level 6 felony. The State also charged Johnson and Hapner with various
crimes.
[8] The three co-defendants deposed Lieutenant George. During his deposition,
the defendants asked Lieutenant George several questions about the
information he had learned from the CI. Lieutenant George declined to answer
some of those questions on the ground that the answers could provide
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information about the CI’s identity. Thereafter, Johnson filed a motion to
compel, in which he asked the court to direct Lieutenant George to answer the
questions regarding the CI. 1 Jones joined in that motion, and he filed a brief in
support. In that brief, Jones asserted that he sought the answers to the
questions regarding the CI because “[o]nly two people committed the crime,”
and, if there was a third person involved, “it certainly could have been [the CI]
who apparently knew so much and whose identity is being hidden.” Id. at 137.
And Jones asserted that he “has a constitutional right to explore that
possibility.” Id.
[9] The State responded and asserted that Jones was seeking “information that
would reveal the identity” of the CI. Id. at 173. The State also asserted that it
had “properly invoked the informer’s privilege” and that Jones had not shown
“by actual evidence” that the disclosure would be “relevant,” “helpful,” or
“essential to a fair trial.” Id. at 174. Accordingly, the State asserted that
“disclosure of the [CI] in this case would not be appropriate[.]” Id. at 176.
[10] At a hearing on the motion on November 11, Jones asserted that he needed the
information regarding the CI in order to learn if, during a “huge delay” between
the offenses and the filing of the charges against him, the victim had provided
any information to the CI. Tr. at 7. The State responded and asserted that the
CI had simply provided “suspect information” that “got the detectives from
1
Neither party has provided a copy of Johnson’s motion to compel on appeal.
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point A to point B” and that none of the information from the CI “is going to
be used.” Id. at 8. The trial court asked the parties to submit additional briefing
on the issue.
[11] The court held another hearing on the motion to compel on January 11, 2019.
At that hearing, Jones asserted that the information from the CI was important
because it “led to everything else.” Id. at 19. And Jones maintained that the
“credibility and reliability” of that information was “critical” to his defense. Id.
The State contended that Jones was merely on a “fishing expedition” and that
he could not point to actual evidence that he believed he could obtain from the
CI. Id. at 24. The trial court directed the parties to work together to provide as
much information as possible.
[12] The parties were able to work together, and Jones was able to gather some
information regarding the source of the CI’s information. However, the parties
returned to court for another hearing on the motion on April 18. At that
hearing, the State asserted that the CI has “never been anybody who’s ever
going to be a witness” at trial or who “was involved in this.” Id. at 64. The
State also reiterated that the information from the CI simply pointed officers in
the “direction of a place to look” for suspects, but that the State did not file
charges based on the CI’s information. Id. at 72. Rather, the State asserted that
Jones’ cell phone found near the stolen car was what “led to” his arrest. Id.
Jones’ counsel stated he needed the information regarding the CI and that he
“would like” the CI’s identity because “you can’t test a person’s credibility
much without it.” Id. at 73. But Jones’ counsel stated that he “would accept
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any limitations that would protect [the CI’s] identity,” including an order to not
share the CI’s identity with Jones. Id.
[13] Following that hearing, the parties agreed to allow Jones’ counsel to question
the CI in a manner that did not disclose the identity of the CI. According to
that agreement, the parties arranged for a telephone interview during which the
CI answered questions using a machine to disguise the CI’s voice. However,
the machine did not work, so the parties were not able to conduct the interview.
[14] The parties then agreed that Jones could submit written questions to the CI,
which Jones did on May 16. Lieutenant George then asked the CI questions,
and the State recorded those questions and answers using a machine to alter the
CI’s voice. The State provided a copy of that recording to Jones on August 20.
However, Jones could not understand the recording, and he asserted that some
of the CI’s answers “begged follow up questions,” which Jones could not ask
due to the format of the interview. Appellant’s App. Vol. 2 at 241.
Accordingly, on August 22, Jones filed a second motion to compel.
[15] At another hearing on the motion to compel, the parties agreed that the State
would provide a transcript of the CI’s interview to Jones and, if Jones wanted to
question the CI further based on the transcript, the parties would arrange an
interview during which someone would relay questions and answers to and
from the informant. The parties then conducted another interview with the CI.
During that interview, Jones relayed questions over the phone to the
prosecutor, who then relayed them to the CI. However, Jones became
concerned with that format because “there was a significant pause” between
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Jones’ questions and the CI’s answers. Appellant’s App. Vol. 3 at 141. As
such, Jones filed a supplement to his motion to compel. In that motion, Jones
asserted that it was “impossible to know what was going on” or whether “there
was consultation regarding the answers” because Jones could not confront the
CI in person. Id. Jones also asserted that the CI’s answers “contradicted” the
information that Jones had obtained from Lieutenant George in “some
significant respects.” Id. Jones then asserted that the CI was now a necessary
witness for trial, and Jones requested a face-to-face interview with the CI.
[16] The State responded and reiterated its argument that it had invoked the
informer’s privilege and that Jones’ argument consisted only of bare assertions
“devoid of any factual support.” Id. at 156. Specifically, the State asserted that,
even if the “alleged inconsistencies” between the CI’s answers and Lieutenant
George’s statements existed, those inconsistencies “would still not constitute
actual evidence that disclosure of the CI’s identity would be relevant or helpful
or essential to a fair trial.” Id. Accordingly, the State alleged that Jones had
not met his burden to overcome the privilege.
[17] The court found that the parties had made “three attempts” for Jones to
question the CI in a manner that protected the CI’s identity, all of which had
failed. Id. at 211. Accordingly, the court ordered the State to produce the CI
for a face-to-face interview with Jones’ counsel. However, the court ordered
Jones’ counsel not to ask “any questions that may disclose the [CI’s] identity,
identifiers, residence, etc.” Id. at 212. This interlocutory appeal ensued.
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Discussion and Decision
[18] The State contends that the trial court erred when it granted Jones’ motion to
compel. Our Supreme Court has recently stated that trial courts “have broad
discretion on issues of discovery.” Beville v. State, 71 N.E.3d 13, 18 (Ind. 2017).
“Accordingly, discovery rulings—such as rulings on motions to compel—are
reviewed for an abuse of that discretion.” Id. Here, the State specifically
contends that the court abused its discretion when it granted Jones’ motion to
compel because the face-to-face interview between the CI and Jones’ counsel
would lead to the identification of the CI. And the State asserts that the
informer’s privilege is applicable in this case to protect the CI’s identity.
[19] Under the informer’s privilege, the State may withhold the disclosure of
evidence that reveals an informant’s identity for at least two important policy
reasons: preventing retaliation against informants and ensuring that individuals
come forward with information to help law enforcement. Id. at 19. “The
informer’s privilege, however, is not absolute: if the accused seeks disclosure,
the burden is on him to ‘demonstrate that disclosure is relevant and helpful to
his defense or necessary for a fair trial.’” Id. (quoting Schlomer v. State, 580
N.E.2d 950, 954 (Ind. 1991)). If the defendant meets his burden, the burden
then shifts to the State to present evidence showing that disclosure is not
necessary to the defendant’s case or that disclosure would threaten its ability to
recruit or use CIs in the future. Id. At that point, the trial court must evaluate
the evidence and determine whether disclosure is appropriate. See id.
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[20] However, the State bears the initial responsibility to prove that the privilege
applies. See id. at 21. Thus, before we determine whether Jones met his burden
as the defendant seeking privileged information, we must first determine
whether the State properly asserted that privilege. In order for the State to
invoke the privilege, the State “must show that the CI’s identity would be
revealed if the criminal defendant’s discovery request is granted.” Id.
[21] On appeal, the State asserts that it met its initial burden to assert the privilege
because the in-person interview will reveal to Jones’ counsel “sufficient means
to deduce” the CI’s identity. Appellant’s Br. at 17. Specifically, the State
asserts that the face-to-face meeting “will necessarily reveal the informant’s
physical appearance and a variety of personal characteristics such as
mannerisms, voice, and speech patterns” to Jones’ counsel, which information
will “make it much easier to discover the [CI’s] identity.” Id. at 18.
[22] However, we agree with Jones that the “State never goes beyond an assumption
that defense counsel seeing the informant will reveal the informant’s identity.”
Appellee’s Br. at 8. Indeed, during a hearing on the motion to compel, the
State conceded that it did not know whether Jones’ counsel would recognize
the CI. And the State acknowledges that, while the in-person interview
“might” reveal certain of the CI’s identifiers to Jones’ counsel, it “may not.”
Appellant’s Br. at 17. But it is not enough to show that the CI’s identity might
be revealed. Rather, it was the State’s burden to prove that the CI’s identity
would be revealed as a result of the face-to-face interview. See Beville, 71 N.E.3d
at 21 (emphasis added).
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[23] If we were to adopt the State’s position, we would, in essence, preclude the
disclosure of any communications in which someone could potentially identify a
CI. We decline to adopt that position. Here, the court fashioned a solution
that balanced Jones’ right to information that would allow him to prepare his
defense with the State’s desire to keep the CI’s identity hidden when it allowed
Jones’ counsel to interview the CI without asking any questions that would
reveal the CI’s identity. Because the State did not meet its burden to
demonstrate that the CI’s identity would be revealed, it has failed to meet it
initial burden to establish that the informer’s privilege applies in this case.
[24] Still, even if we were to agree with the State that it had properly invoked the
privilege, Jones has met his burden to demonstrate that the CI had information
that is relevant and helpful to his defense or necessary for a fair trial. See Beville,
78 N.E.3d at 19. In his brief, Jones raises numerous questions that suggest the
information from the CI would be helpful for him to understand how the
officers investigating the robbery at Thompson’s house linked him to that
offense. Accordingly, we conclude that the trial court did not abuse its
discretion when it granted Jones’ motion to compel, and we affirm the trial
court.
[25] Affirmed.
Bradford, C.J., and Mathias, J., concur.
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