State v. Schilling , 238 Kan. 593 ( 1986 )

Prager, J.,

dissenting and concurring: I respectfully dissent from that portion of the opinion holding that the trial court abused its discretion in ordering the prosecution to disclose the identity of a confidential informant. This court has consistently held that the disclosure of the identity of an informant lies within the sound discretion of the court whose discretion will not be overturned unless an abuse of discretion is shown. State v. Pink, 236 Kan. 715, Syl. ¶ 2, 696 P.2d 358 (1985); State v. Nirschl, 208 Kan. 111, 115, 490 P.2d 917 (1971).

Judicial discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken, then it cannot be said the trial court abused its discretion. State v. Wilkins, 220 Kan. 735, 556 P.2d 424 (1976). I cannot in good conscience agree that the trial court abused its discretion under the circumstances shown in the record in this case.

As pointed out by Justice Miller in the majority opinion, the factual circumstances are to a great extent undisputed. The informant was known personally to the defendant as Susan, but he did not know her last name. On March 10, 1984, Detective Mathews requested Susan to contact the defendant to arrange for the purchase of narcotic drugs. Detective Mathews, accompanied by another detective and Susan, first met the defendant at his place of employment pursuant to an earlier telephone call made by Susan. The four people then drove to the defendant’s residence. Defendant went into the residence, returned a few minutes later, and they then drove to Molly Mae’s club. When they arrived there, defendant produced a plastic baggie containing marijuana which Mathews purchased. The evidence is undisputed that all four then went into the club and sat at a table where they had conversation for 30 minutes. Susan danced for about 10 minutes but was present for 20 minutes during the conversation at the table. According to Detective Mathews, during the conversation he discussed future drug buys with defendant. Detective Mathews testified that he did not know if the informant was present during the entire conversation or any part of it. According to Detective Mathews, he informed the defendant that he was interested in purchasing a large amount of marijuana and defendant responded that he knew an individual in Hutchinson who could possibly get that much and that he, the defendant, would have to get back to him. This was clearly evidence tending to show that it was contemplated that defendant would act as procuring agent for Detective Mathews, because another individual in Hutchinson was to be contacted to obtain drugs.

In addition, Detective Mathews testified that defendant also talked with another member of the club who knew somebody but didn’t know how quickly he could get that large an amount of drugs. Defendant also mentioned that there was someone from whom he could get LSD but that the money would have to be “fronted.” The officer told the defendant that was not satisfactory. From this testimony, it could be concluded that Detective Mathews and the defendant contemplated future drug buys in which the defendant would act as the procuring agent for Detective Mathews.

The procuring agent defense is a recognized defense to a charge of sale of narcotic drugs. A procuring agent for the purchaser is a person who, by agreement with the purchaser, buys or procures an article or substance from a third party at the request of and for the purchaser. The agreement may be written, oral, or implied by the parties. The defendant would not be a procuring agent if he acted as a seller or an agent for the seller. The leading case on the procuring agent defense in narcotic cases is State v. Osburn, 211 Kan. 248, 505 P.2d 742 (1973). In Osburn, it was held that a procuring agent for a purchaser of drugs may be guilty of unlawful possession of the drug, but he is not guilty of an unlawful sale in procuring the unlawful substance. In a prosecution for the unlawful sale of narcotics, when the defense of procuring agent is raised, the decision as to whether the accused acted as a procuring agent of the buyer or was the seller of the narcotics is a question of fact for the jury to determine from the evidence.

It is clear that the defense of procuring agent is determined by the relationship between the defendant and the police officer who requested the purchase. The fact that a drug sale or sales actually took place is usually undisputed. The relationship of procuring agent and buyer is not determined at the time of the delivery of the drug, but at the time the agreement is made that the defendant shall deliver the drug at a future time. In the present case, the fact that the informant Susan was not present at the time drugs were delivered on June 8, 1984, and June 19, 1984, as alleged in Counts 2 and 3 of the information, is not significant. Under the evidence presented by Detective Mathews at the hearing, Susan could have been present at the time future sales of drugs were discussed and could have informed the jury as to what was said, thus shedding light on the relationship between Detective Mathews and the defendant, Donald A. Schilling.

At the hearing on the motion to disclose, counsel for the defendant informed the court that the defense to be asserted in the case was that of procuring agent. The informant may provide testimony which will be highly relevant on that issue. If that testimony can be obtained by defense counsel's search for the whereabouts of Susan, why is it not fair and just to require the name of the witness to be disclosed by the prosecution, so that defense counsel can attempt to locate her? How can it be said that no reasonable man would require the prosecution to disclose the name of the informant in this case. The following factors, in my judgment, clearly show the reasonableness of the trial court’s order:

(1) It was Detective Doyle who initiated the contact with the defendant using defendant’s prior relationship with the informant.

(2) It was Detective Doyle who suggested to defendant that he desired to purchase narcotic drugs.

(3) At the time the discussion of future sales took place, defendant suggested a third person in Hutchinson might be contacted to obtain the narcotic drugs.

(4) At Molly Mae’s on the night of March 10, 1984, defendant discussed with another patron of the club the possibility of obtaining narcotic drugs at a future time.

(5) The discussion of future drug sales took place at the table in Molly Mae’s, and the informant may have been present to hear those discussions.

(6) Detective Mathews testified that the informant is not now actively working any cases for the Wichita police department as a confidential informant.

(7) Detective Mathews testified that releasing the name of the informant would not place him or any member of his staff in danger.

(8) Detective Mathews testified, in substance, that he refused to disclose the name of the informant as a matter of department policy. He never reveals the names of confidential informants.

(9) The defendant is acquainted with Susan, the confidential informant, although he is uncertain as to her last name. Thus, her identity is actually known to the defendant. He needs her last name only so that he can attempt to locate her and have her as a witness at his trial.

In Roviaro v. United States, 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623 (1957), the United States Supreme Court discussed the so-called “informer’s privilege” in the following language:

“What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. [Citations omitted.] The purpose of the privilege is the furtherance and protection of the public interest 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, encourages them to perform that obligation.

“The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged. Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.

“A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.” 353 U.S. at 59-61.

It is important to note that one of the limitations on the applicability of the informer’s privilege arises from the fundamental requirements of fairness. Roviaro makes it clear that disclosure is ordinarily required where the circumstances of the case determine that the informant’s possible testimony is highly relevant and might be helpful to the defense. The test is thus whether or not the informant’s testimony might be helpful to the defendant by providing relevant testimony on the basic issue of fact in the case.

As pointed out in the majority opinion, the leading case in Kansas on the informer’s privilege is State v. Knox, 4 Kan. App. 2d 87, 603 P.2d 199 (1979). Knox points out no fixed rule with which respect to disclosure of the identity of an informant is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors. As determined in State v. Knox, where the informer could provide relevant testimony at trial going to guilt or innocence, which may possibly be of assistance to the defense, this factor will normally outweigh the State’s interest in nondisclosure.

I respectfully disagree with the majority opinion in this case that the trial court abused its discretion in ordering disclosure of the name of the informer. The undisputed factual circumstances have been set forth heretofore. In my judgment, a reasonable person could conclude that fundamental fairness requires disclosure of the name of the informant, Susan.

I concur, however, with the conclusion of the majority that the trial court erred in ordering the prosecution to either disclose the identity of the informant, dismiss the case with prejudice, or be held in contempt of court. I agree that a trial court may dismiss a criminal case for failure of the prosecution to discloseme name of an informant. Because the trial court has that authority, there was no need for the trial court in this case to invoke its contempt power and to order the prosecution to either dismiss the case or be in contempt. The trial court should simply have given the prosecution a reasonable time to furnish the name of the confidential informant and, if the name was not furnished by that date, the trial court should then have dismissed the case. That would have been the appropriate action for the trial court to have taken.