Petitioner for ReHearing — Missouri v. Wandix
Supreme Court brief1980
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FEB 12 989
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MICHAEL RODAK, JR., CLERW
In the Supreme Court of the United States
OCTOBER TERM, 1979
No... €9= 1248
STATE OF MISSOURI,
Petitioner,
VS.
VINCENT WANDIX,
Respondent.
PETITION FOR A WRIT OF CERTIORARI FROM |
A FINAL JUDGMENT ENTERED BY THE |
MISSOURI SUPREME COURT |
JOHN ASHCROFT |
Attorney General
MICHAEL H. FINKELSTEIN
Assistant Attorney General
P.O. Box 899
Jefferson City, Missouri 65102
(314) 751-3321
Attorneys for Petitioner
Of Counsel
CHRISTOPHER LAMBRECHT
E. L, MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030
INDEX
Reports of Opinions Below 20.00... ccecccecceccccecseeeoccoceceens 1
Jurisdictional Statement 22... 2
Question Presented for Review .............................. 3
Cometitutional Provisions 0... 4
rn oe 6
ee 11
ETRE OSS Sate 20
Appendices:
Appendix A—Opinion of the Missouri Court of Ap-
peals, St. Louis District (November 21, 1978) .... Al
Appendix B—Opinion of the Supreme Court of
Missouri (October 19, 1979) o.oo. A7
Appendix C—Dissenting Opinion in the Supreme
Court of Missouri by Rendlen, J. (October 19,
Re ah SSS a Al6
Appendix D—Per Curiam Opinion of the Supreme
Court of Missouri (November 14, , (ae eee A45
Table of Authorities
CASES
Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed:2d
co EUR NESSES OSCE] GR ie 20
CRESS SEER REE 6 Jct RO 11,12
Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623,
1 L.Ed.2d 639 (1957) ........ 3, 10, 11, 12, 13, 14, 15, 18, 19, 20
Sorrentino v. United States (C.A. 9th Cal.) 163 F.2d
EE ES SEITE NO 11, 12
State v. Wandizx, 590 S.W.2d 82 (Mo. banc 1979) ....2, 10, 11
14, 15
II
United States v. Conforti (C.A. 7th Ill.) 200 F.2d
SP decd sane nsec dcicheeneriadibisidhonekom nt tecseen dikes lenelieasnebushiccinese 11, 13
OTHER AUTHORITIES
eet gt RRR SOOO EUR ae ee PR
SN Si a Oa
SN i a a
United States Constitution, Amendment V ........... ........
United States Constitution, Amendment XIV ................
In the Supreme Court of the United States
OCTOBER TERM, 1979
STATE OF MISSOURI,
Petitioner,
vs.
VINCENT WANDIX,
Respondent.
PETITION FOR A WRIT OF CERTIORARI FROM
A FINAL JUDGMENT ENTERED BY THE
MISSOURI SUPREME COURT
The State of Missouri, petitioner herein, by its Attor-
ney General John Ashcroft, respectfully requests that this
Court issue a writ of certiorari to review the judgment and
opinion of the Missouri Supreme Court entered on Oc-
tober 19, 1979. The State of Missouri’s Motion for Rehear-
ing was overruled by the Missouri Supreme Court on
November 14, 1979.
REPORTS OF OPINIONS BELOW
On March 16, 1976, an indictment was filed charging
Wandix with unlawfully and feloniously selling heroin on
July 23, 1975. After two mistrials Wandix was convicted
on April 13, 1977, of the sale of heroin. The jury fixed his
punishment at fifteen (15) years; the trial court reduced
that sentence to ten (10) years.
2
An appeal was taken to the Missouri Court of Appeals,
Eastern District. That Court issued an unpublished opin-
ion affirming the judgment and conviction. Appendix A.
Pursuant to Wandix’s Motion the case was transferred to
the Missouri Supreme Court on February 13, 1979. On
October 19, 1979, that Court reversed the conviction and
remanded the case for a new trial. State v. Wandizx, 590
S.W.2d 82 (Mo. banc 1979); and, Appendix B. The State
filed a Motion for Rehearing on November 2, 1979. Ap-
pendix C. This Motion was overruled in a per curiam
opinion filed November 14, 1979. Appendix D.
JURISDICTIONAL STATEMENT
Title 28 U.S.C. § 1257 states, in pertinent part, that
final judgments or decrees rendered by the highest court
of a State may be reviewed
“[{b]y writ of certiorari... where any title, right,
privilege or immunity is specifically set up or claimed
under the Constitution, treaties or statutes of ... the
United States.”
This Court’s Rule 19 also provides for review by certiorari:
“Where a state court has decided a federal ques-
tion of substance not theretofore determined by this
court, or has decided it in a way probably not in accord
with applicable decisions of this court.”
In this case a confidential informant introduced an
undercover agent to Wandix who agreed to sell heroin to
the agent. Since the informant was no more than a minor
participant in the drug transaction, and the evidence in-
dicated that he was not even present when the sale took
place, the trial court refused Wandix’s request for dis-
closure of the informant’s identity. The Missouri Supreme
3
Court reversed the conviction concluding that disclosure
was mandated. The Missouri Supreme Court remanded the
case for retrial based solely upon its reading of Roviaro v.
United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639
(1957).
The State of Missouri asserts that the facts in this
case are wholly dissimilar to those in Roviaro. Conse-
quently, the State urges that this Court issue the Writ be-
cause the Missouri Supreme Court has improperly extended,
far beyond its intendment and scope, the rule of disclosure
found in Roviaro. To use the language of Rule 19, the State
urges that the Writ issue to the Missouri Supreme Court
because it required the disclosure of a confidential infor-
mant in a way which is probably not in accord with appli-
cable decisions of this Court.
QUESTION PRESENTED FOR REVIEW
Wandix was introduced to an undercover agent, by an
informant, shortly before Wandix sold heroin to the agent.
The Missouri Supreme Court held that the informant’s
identity had to be disclosed, despite his minor role in the
affair, because Wandix relied upon the defense of mistaken
identity. Based solely on Roviaro the Missouri Supreme
Court concluded that the failure of the trial court to order
disclosure violated Wandix’s federal constitutional right to
a fair trial.
Consequently, the question here presented is whether
the Missouri Supreme Court misinterpreted Roviaro and
thereby improperly expanded and enlarged upon a criminal
defendant’s right to the identity of an informant tangen-
tially involved in a criminal transaction.
CONSTITUTIONAL PROVISIONS
Fifth Amendment to the United States Constitution:
“No person shall be held to answer for a capital or
otherwise infamous crime unless on a presentment or
indictment of a grand jury, except in cases arising in
the land or naval forces, or in the militia, when in
actual service in time of war or public danger; nor shall
any person be subject for the same offense to be twice
put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself,
nor be deprived of life, liberty or property without due
process of law; nor shall private property be taken for
public use without just compensation.”
Fourteenth Amendment to the United States Constitu-
tion:
“Section 1. All persons born or naturalized in
the United States and subject to the jurisdiction thereof
are citizens of the United States and of the state where-
in they reside. No state shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States, nor shall any state deprive
any person of life, liberty or property without due pro-
cess of law, nor deny to any person within its juris-
diction the equal protection of the laws.
“Section 2. Representatives shall be apportioned
among the several states according to their respective
numbers, counting the whole number of persons in
each state, excluding Indians not taxed. But when
the right to vote at any election for the choice of elec-
tors for President and Vice-President of the United
States, representatives in Congress, the executive and
judicial officers of a state, or the members of the legis-
ver
5
lature thereof, is denied to any of the male inhabitants
of such state being twenty-one years of age and cit-
izens of the United States, or in any way abridged,
except for participation in rebellion or other crime, the
basis of representation therein shall be reduced in the
proportion which the number of such male citizens
shall bear to the whole number of male citizens twenty-
one years of age in such state.
“Section 3. No person shall be a senator or repre-
sentative in Congress, or elector of President and Vice-
President, or hold any office, civil or military, under
the United States or under any state, who, having
previously taken an oath as a member of Congress, or
as an officer of the United States, or as a member of
any state legislature, or as an executive or judicial of-
ficer of any state, to support the Constitution of the
United States, shall have engaged in insurrection or
rebellion against the same, or given aid or comfort to the
enemies thereof. But Congress may, by a vote of two-
thirds of each house, remove such disability.
“Section 4. The validity of the public debt of the
United States, authorized by law, including debts in-
curred for payment of pensions and bounties for ser-
vices in suppressing insurrection or rebellion, shall not
be questioned. But neither the United States nor any
state shall assume or pay any debt or obligation in-
curred in aid of insurrection or rebellion against the
United States, or any claim for the loss or emancipa-
tion of any slave, but all such debts, obligations and
claims shall be held illegal and void.
“Section 5. The Congress shall have power to en-
force, by appropriate legislation, the provisions of this
article.”
STATEMENT OF THE CASE
On March 16, 1976, an indictment was filed charging
Wandix with unlawfully and feloniously selling heroin
on July 23, 1975 (Tr. 1-2). Wandix was convicted of the
sale of heroin on April 13, 1977, and sentenced to a term
of fifteen (15) years imprisonment (Tr. 260). The trial
court thereafter reduced the sentence to ten (10) years
(Tr. 273).
Officer Leeman Dobbins was, on the date in question,
employed by the St. Louis Police Department and as-
signed to the Narcotics Division (Tr. 21). On July 23,
1975, at about 5:30 p.m., he, along with Detective Leon
Bates and an “unidentified individual,” went to a residence
located in the Beechum Park area (Tr. 21-23). At a
Beechum Park residence, as previously arranged, the “un-
identified individual” introduced Officer Dobbins to
Wandix (Tr. 24). After arrangements were made Officer
Dobbins followed Wandix to 942 South Taylor (Tr. 24-25).
Prior to arriving at 942 South Taylor Officer Dobbins
dropped Detective Bates off at the corner (Tr. 25).
Officer Dobbins arrived at 942 South Taylor residence
at approximately 6:20 p.m. and followed Wandix inside
(Tr. 26). Once inside Wandix asked Officer Dobbins
what he wanted, to which Dobbins replied that he wanted
two capsules of heroin (Tr. 26-27). Wandix said “okay,”
left the presence of Officer Dobbins, walked down the
hallway and returned a minute or two later (Tr. 27).
Upon his return Wandix produced a container holding 20
to 30 capsules from which he removed two (Tr. 27).
Wandix then handed Dobbins two capsules in return for
which he received a twenty dollar bill (Tr. 28).
It was agreed at trial that the capsules contained
heroin (Tr. 28, 143-144, 145, 253). Officer Dobbins spoke
7
briefly with Wandix after the sale, at which time he was
told that he could come back and purchase more heroin
if he so desired (Tr. 29).
Officer Dobbins left the residence, picked up his part-
ner Detective Bates, and went to a parking lot where he
met another police officer (Tr. 30). At the close of the
direct examination of Officer Dobbins he stated that he
was aware of no one else who was present in the 942 South
Taylor residence at the time the heroin transaction oc-
curred (Tr. 31).
On cross-examination Mr. Schwartz, Wandix’s at-
torney, asked Officer Dobbins to disclose the identity of
the informant who introduced him to Wandix (Tr. 32).
The State objected on the ground that Wandix did not
have a right to the identity of the informant because
“(t]he informant was not present for the sale.... And
I don’t believe he has any bearing on the guilt or innocence
in this matter. .. .” (Tr. 32-33). Mr. Schwartz asserted
that the informant was a material witness because “. . .
he is some kind of a participant in this incident. It may
be he instigated this incident and if he did he is not a con-
fidential informant of [sic] Missouri law and he is a nec-
essary and material witness.” (Tr. 33).
At this juncture the State, Mr. Schwartz, and the trial
judge discussed the matter of disclosure in the judge’s
chambers (Tr. 35). There it was established that the in-
formant did not enter the South Taylor residence with
Officer Dobbins (Tr. 43). Mr. Schwartz questioned Of-
ficer Dobbins extensively in the judge’s chambers, mostly
in regard to whether the informant was reliable (Tr. 35-
49). Upon finishing his questioning of Officer Dobbins,
Mr. Schwartz made an oral motion requesting the State
disclose the name of the informant, and his address, “for
the reason that I don’t think he qualified as [the prose-
8
cutor] would have the Court, or ask the Court to believe
as being a confidential informant” (Tr. 49). Mr. Schwartz
further requested that the informant’s identity be dis-
closed because “he is the only lay-witness to this case
...” (Tr. 50). Mr. Schwar*z stated that the case involved
an alibi defense and that the informant is “the only lay-
witness who can contradict, dispel, or prove the issues
that are in controversy except the government witnesses.
...” (Tr. 50). Mr. Schwartz closed his oral motion by
requesting the disclosure of the identity of the informant
“—if it would help this defendant, and help Mr. Wandix
in counteracting any of the evidence in this case” (Tr. 50).
The Court overruled the motion to disclose (Tr. 50).
Upon the parties’ return to open court Officer Dobbins
testified that the plan was that he be introduced to some-
body by the name of “Wandix” by an informant so that
a drug deal could be consummated (Tr. 67-68).
The second witness to testify for the State was Officer
Leon Bates. He was employed for seven years by the St.
Louis Police Department and on July 23, 1975, was as-
signed to the Narcotics Division (Tr. 78). On that date
Bates accompanied Dobbins to the Beechum Park area
residence where he saw the latter conversing with Wandix
(Tr. 80). Officer Bates also saw Wandix pull into a
driveway at the South Taylor residence and enter that
residence with Dobbins (Tr. 82). Bates himself did not
enter the South Taylor residence (Tr. 91, 100).
The third witness to testify for the State was Officer
Michael McDonald. At the time of trial he was a detective
with the St. Louis Police Department, and had so been for
four years (Tr. 111). At about 6:30 p.m. on July 23, 1975,
McDonald received two red capsules from Dobbins after
the latter purchased them at the South Taylor residence
from Wandix (Tr. 114-115).
9
On cross-examination Mr. Schwartz asked McDonald
the name of the informant; this question initiated a second
hearing in the judge’s chambers (Tr. 116). In chambers
McDonald stated that on July 23, 1975, he came to work in
the evening at which time he was told that he was going
to “surveil” two City detectives on a deal; this deal was set
up prior to his coming to work (Tr. 117-118). At that
point in time McDonald had no previous contact with the
informant (Tr. 118). However, McDonald had numerous
subsequent contacts with the informant (Tr. 119). The
subsequent numerous occasions involved either the sale
or possession of controlled substances (Tr. 119). The in-
formant supplied information to McDonald for six to eight
months subsequen. to July 23, 1975 (Tr. 119). From
these experiences McDonald found that the informant was
reliable (Tr. 120).
Thereafter, the trial court overruled, for a second
time, Wandix’s request that the informant’s identity be
disclosed (Tr. 127).
The Missouri Court of Appeals, Eastern District, af-
firmed the conviction in an Opinion filed on November
21, 1978. Appendix A. Therein, the Eastern District agreed
with the State that the disclosure issue was not preserved
for review because it was not made with specificity at
trial.
“We hold [Wandix] did not preserve the point for
review, either at trial or in his after-trial motion. In
both, [Wandix] contended his right to disclosure was
based on his unfounded assertions the infermant was
an instigator of and participant in the sale. At no
time did [Wandix] contend, as he does for the first
time on appeal, that disclosure was warranted be-
cause ‘identity is a crucial issue in this case.’ ”
C—O —
10
Nevertheless, the Eastern District reviewed the point on
its merits and concluded that disclosure was not mandated
because the facts in the case clearly indicated that the in-
formant was merely that, and his minor participation in
the crime and his failure to witness the actual transaction
supported the trial court’s ruling.
The case was transferred to the Missouri Supreme
Court which reversed the conviction. First, the Court
found that the question was preserved for review be-
cause “the parties recognized that identity was a crucial
issue in the case.” State v. Wandix, 590 S.W.2d 82, 84
(Mo. banc 1979). The Court also found that the issue of
disclosure was properly before them regardless of the fact
that Wandix’s Motion for Disclosure was untimely filed in
the trial court. Id., 509 S.W.2d at 84.
Second, the Court went on to discuss the merits of the
disclosure issue. In determining that the trial court erred
in failing to require disclosure, the Missouri Supreme
Court relied solely upon Roviaro. Indeed, in its per curiam
statement overruling the State’s Motion for Rehearing the
Missouri Supreme Court stated that it did not presume
to declare new law, that its Opinion represented, at most,
“an application of the Roviaro Lalancing test... .” Id.,
590 S.W.2d at 93.
The Missouri Supreme Court found irrelevant
“(w]hether the informant actually entered the house
..” Id., 590 S.W.2d at 86. Rather, the Court found that
Roviaro mandated disclosure because the informant intro-
duced an undercover agent to Wandix shortly before the
drug sale, and Wandix relied upon a defense of mistaken
identity at trial. Thus, the Court found that the State’s
need to maintain the confidentiality of its informant was
minimal—because the informant was no longer active at
the time of the trial—and “the informant could provide
relevant testimony at trial.” Id., 590 S.W.2d at 86.
Ne eee Gee
11
ARGUMENT
In State v. Wandix, supra, the Missouri Supreme Court
decided a question of significant federal constitutional mag-
nitude. In essence, the Missouri Supreme Court concluded
that federal constitutional law, as enunciated by this Court
in Roviaro, mandated the disclosure of a confidential in-
formant whenever a defendant claimed the defense of
mistaken identity even though the informant’s part in the
criminal transaction may have been minimal.
The State contends that the perimeters of the in-
former privilege are a matter of federal constitutional law
defined by this Court in Roviaro. The State further con-
tends that the Missouri Supreme Court, in State v. Wandiz,
unlawfully expanded upon a defendant’s right to the
identity of an informant, to the detriment not only of the
State of Missouri but to the interests of every system de-
signed to serve the ends of criminal justice, and that there-
fore the decision of the Missouri Supreme Court must be
reversed.
Roviaro came to this Court on a writ of ceriorari
“{i]n order to pass upon the propriety of the non-
disclosure of the informer’s identity and to consider
an alleged conflict with Portomene v. United States
(C.A. 5th Fla.) 221 F.2d 582; United States v. Conforti
(C.A. 7th Ill.) 200 F.2d 365; and Sorrentino v. United
States (C.A. 9th Cal.) 163 F.2d 627.”
Roviaro was convicted on a two-count indictment, one
count charging that on a given date he sold heroin to one
“Joe Doe” and the second alleging that at the same time
he
“. .. did then and there fraudulently and know-
ingly receive, conceal, buy and facilitate the trans-
12
portation and concealment of . . . heroin, knowing the
same to be imported into the United States contrary
tolaw....”
The evidence as to the factual circumstances underlying
the conviction established that Roviaro sold heroin di-
rectly to the informant, and that there were no other par-
ticipants in the transaction. Despite this fact, and in spite
of a provision of 21 U.S.C. § 174, shifting to Roviaro the
burden of going forward with evidence as to his own de-
fense, the District Court refused to compel disclosure of
the identity of “Joe Doe”. The decision was affirmed by
the Court of Appeals.
Roviaro reached this Court for consideration in light
of three prior federal decisions—each of which presented
a situation strinkingly similar to it. In Sorrentino, supra, a
government informer arranged and participated in the
transfer of opium without any other witness to the trans-
action. Affirming the decision of the lower court, on other
grounds, the Ninth Circuit noted:
“... If the person .. . had been an informer and
nothing more, appellant would not have been entitled
to have his identity disclosed; but the person . . . called
an informer was something more. He was the person
to whom appellant was said to have sold and dispensed
the opium described in the indictment. Information
as to the person’s identity was . . . material to appel-
lant’s defense, and appellant was entitled to a dis-
closure thereof.” 163 F.2d at 628.
Portomene, supra, also involved the sale of illegal
drugs to an informer. Relying upon Sorrentino the Fifth
Circuit held the District Court’s refusal to compel dis-
closure of the informer’s identity was fatal to the convic-
tion distinguishing the informer who
13
“, .. is that and nothing more, in which case the de-
fendant would not have been entitled to have his iden-
tity disclosed, and a case such as this one, where the
informer is the person to whom the defendant is said
to have sold and dispensed the opium described in the
‘sdictment. In such case information as to this per-
son’s identity was material to the defense and the
denial of the required information was error.” 221
F.2d at 583.
In Conforti, supra, the Seventh Circuit stated that be-
cause an informant was the recipient of counterfeit notes,
the defendant who had allegedly delivered the note would
have had the right to compel disclosure of the informant’s
identity, had a proper demand been made at trial.
Therefore, this Court in Roviaro was presented with
the question of whether the petitioner’s conviction could
stand in light of prior holdings on the informer privilege.
This Court held that it could not. Preliminarily, the basis
of the privilege was explained as follows:
“What is usually referred to as the informer’s priv-
ilege is in reality the Government’s privilege to with-
hold from disclosure the identity of persons who fur-
nish information of violations of law to officers
charged with enforcement of that law [citations
omitted]. The purpose of the privilege is a fur-
therance and protection of the public interest in ef-
fective law enforcement. The privilege recognizes
the obligation of citizens to communicate their knowl-
edge of the commission of crimes to law-enforcement
officials, and, by preserving their anonymity, en-
courages them to perform that obligation.” 353 U.S. at
60, 1 L.Ed.2d at 644.
The principal accomplishment of this Court in Roviaro,
however, lay not in the definition of the privilege, but
14
rather in its limitation. Allowing, first, that disclosure
might be compelled where the identity is already known
to persons who might have adverse interests, Justice
Burton turned to a more fundamental limitation:
“*,.. Where the disclosure of an informer’s identity,
or 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.” 353 U.S. at 60-61, 1 L.Ed.2d at 645.
The definition of ‘‘relevant and helpful” is not absolute:
“. . . Most of the federal cases involving this lim-
itation on the scope of the informer’s privilege have
arisen where the legality of a search without a war-
rant is an issue and the communications of an informer
are claimed to establish probable cause. In these
cases the Government has been required to disclose the
identity of the informant unless there was sufficient
evidence apart from his confidential communication.”
353 U.S. at 61, 1 L.Ed.2d at 645.
The test is one that calls for a balancing of the public in-
terest in protecting the flow of information, as opposed to
the individual’s right to prepare for his defense. In over-
turning Roviaro’s conviction this Court asserted that the
identity of an informant who is only an informant is not
subject to disclosure.
The State of Missouri notes that Roviaro’s limitation
has always been recognized, up until the Missouri Supreme
Court’s decision in Wandix. Indeed, the Wandix decision
was by the narrowest of margins: the vote was four to
three in favor of reversal.
It is interesting to compare the majority Opinion in
Wandix to that of the dissent. The majority concluded
that reversal was mandated because the trial court erred
15
by failing to require disclosure of the informant’s identity.
The majority buttressed its conclusion by relying solely
upon this Court’s decision in Roviaro. Nevertheless, the
Wandix majority failed to discuss the plethora of opinions
construing Roviaro. Those cases, cited by the dissent, rec-
ognized that Roviaro mandated disclosure only in cases
where the informant either witnessed the transaction or
was a major participant. The dissent pointed out, time
after time, that the factual situation in Wandix was strik-
ingly similar to those cases where disclosure was held not
to be warranted. The dissent established the striking
factual dissimilarity between Wandix and Roviaro. The
dissent relied upon numerous state and federal cases which
supported affirmance of Wandix’s conviction because the
informant neither dealt directly with Wandix nor was a
significant participant in the criminal offense. As stated
by the dissent:
“Here, the majority with little mention of the
Roviaro facts has seized upon a part of the general
language in the decision and carried it beyond the
contextual limits of the case. It would permit a de-
fendant in any case when an informant was a mere
bystander or observer to make the vague conclusory
allegation that the informant, who observed facts
preliminary to an actual sale of narcotics, might be
of help and on such a general allegation disclosure
would be required. This it does without requiring
that 1) defendant first show the reasonable likelihood
that informant’s testimony would be of reasonable
benefit to him, or 2) there be a showing, as in Roviaro
that he participated in the commission of the crime.
“In short, the mischief resulting from the ma-
jority’s opinion which unreasonably extrapolates the
general language of Roviaro would effectively destroy
16
the privilege of the confidential informer in drug cases
and required disclosure on the basis of mere specula-
tion that an informant might be able to help the de-
fendant in some way by ‘amplifying of denying tes-
timony of the police officer. This would be so, where
as here, an informant gives information and merely
leads the police officers to a place where the drug
peddler is conducting his business. Such was not the
intent of Roviaro and constituted an unwarranted ex-
tension of the holding of that case which can only lead
to stultification of our law enforcement system by ef-
fectively removing one of the state’s most valuable
enforcement tools, the confidential informant. This
radical departure should not be adopted as the law
in Missouri and indeed in McCray v. Illinois, 386 U.S.
300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), the Supreme
Court reexamining Roviaro ten years later made clear
that it should not be read broadly to require disclosure
of an informant’s identity in various procedural stages
of criminal prosecutions, that there is no justification
for a fixed rule with respect to disclosure and reiterated
that in Roviaro the informer ‘was the sole participant,
other than the accused.’ Id., at 310, 311, 87 S.Ct. 1062.
The McCray Court reemphasized that a most impor-
tant consideration before disclosure would be required
was ‘the possible significance of the informer’s testi-
mony.’ Id. Stated otherwise, the trial court need not
blindly accept defendant’s assertion that the inform-
ant’s testimony would be helpful. Instead, it must first
determine the reasonable likelihood of such ‘helpful
testimony’ and thereafter weigh such ‘fact’ in the
balance.
“(Numerous courts have applied the Roviaro bal-
ancing test to the disclosure issue and have held that
the name of an informant, though a minor participant
I
17
in a criminal transaction and an e ness to the
transaction in question, n Ot be disclosed. As
hereinabove noted ther€ is some question in the evi-
dence whether informant was present when the trans-
action éccurred, but the more plausible testimony dem-
~” onstrated he was not and that his observations in-
cluded only the parties’ preliminary meeting.
* * *
“Certainly, in this case where it is shown that the
informant merely introduced Wandix to the officer
and followed him to the house (or may have entered)
in which the crime was committed, the trial court
did not abuse its discretion in denying the motion for
disclosure. In State v. Milligan, 71 N.J. 373, 365 A.2d
914 (N.J. 1976), the New Jersey Supreme Court re-
cently dealt with the disclosure issue under facts nearly
identical to ours. An informant accompanied a police
officer to a street corner location where he introduced
the officer to defendant and observed as the sale was
arranged. Subsequently all three drove to the de-
fendant’s house and while the informer was out of the
room, the sale was made. The New Jersey Supreme
Court concluded that given the informer’s limited
involvement in the crime and the speculative sig-
nificance of the testimony, the defendant did not
demonstrate that his interests outweighed the state’s
interest in nondisclosure. There as here, the in-
formant’s role was minor and the significance of his
possible testimony a matter of conjecture.
»*_ * *
“It is generally recognized that defendant has a
significant burden of proving that the disclosure of a
confidential informant is necessary for a fair deter-
mination of defendant’s case and that the need out-
weighs the government’s interest. Mere speculation
18
on the defendant’s part that the testimony of the con-
fidential informant will be helpful is not enough. [Cita-
tions omitted]. In the case at bar, defendant has
offered only his conclusory assertion (belatedly made
by his oral motion during trial) that the informant’s
testimony might be helpful. This may legitimately be
characterized as speculation and conjecture hardly suf-
ficient to meet the significant burden described in
the flood of cases interpreting Roviaro.” 590 S.W.2d
at 90-92.
Interestingly, the Missouri Supreme Court did not dis-
cuss, in its majority opinion, the speculative nature of
Wandix’s request for disclosure. The Missouri Supreme
Court ignored the fact that by his own admission Wandix’s
trial counsel had tried the case at least twice previously.
Certainly, Mr. Schwartz knew the facts of the case inside
and out and the fact that he failed to sustain his burden
and establish that the informant had testimony beneficial
to Wandix is enough to support the trial court’s decision
not to require disclosure.
Simply stated, this Court’s decision in Roviaro states,
and has been interpreted to state, that disclosure is re-
quired only when the informant was a major participant,
or the only other participant in the drug transaction and
had information beneficial to the defendant. The majority
opinion of the Missouri Supreme Court has twisted Roviaro
inside out. The Missouri Supreme Court ignored the fact
that Wandix’s Motion for Disclosure was based upon specu-
lation and conjecture and that Wandix never came close
to sustaining his burden of establishing the likelihood that
the informant had beneficial testimony. Furthermore, the
Missouri Supreme Court blithely ignored the teaching
of Roviaro, and its progeny, that before disclosure is
mandated an informant must participate in a major way
in the transaction sought to be charged against the de-
a
19
fendant. The majority opinion of the Missouri Supreme
Court stated that it was irrelevant whether the informant
witnessed the drug transaction; the Court was satisfied
that the informant had introduced undercover agents to
Wandix shortly before the sale. This, however, is not
enough and the overwhelming number of cases construing
Roviaro, and Roviaro itself, so state.
Finally, the majority opinion of the Missouri Supreme
Court found the State’s interest in preventing disclosure
weak simply because the informant was no longer active.
It must be pointed out that this Court in Roviaro never
said anything about the activity, vel non of an informant.
Obviously, whether an informant is still active at the time
of trial is only tangential to an ascertainment of the State’s
interest in preventing disclosure. Other issues which need
to be considered are: 1) whether the informant is an ac-
tive and participating member in the community and thus
his well-being substantially endangered if his identity is
disclosed; 2) whether the informant has taken only a brief
hiatus from his work with the police department and dis-
closure will deter his efforts to curtail lawlessness in the
future; and, 3) whether the community as a whole will be
detrimentally affected and persuaded not to report law-
lessness if it observes that once an informant disengages
himself from that activity he is subject to having his
“cover blown” and his life endangered.
The balancing test that this Court set out in Roviaro
is far more complex than the Missouri Supreme Court
makes it out to be.
The Missouri Supreme Court, in fact, did no balancing
whatsoever. It simply concluded, based upon Roviaro, and
no other authority, that the introduction of Wandix to
undercover agents by the informant shortly before the drug
sale was sufficient to require disclosure since Wandix
ro
20
was relying upon a defense of mistaken identity. This is
not what Roviaro said. It is the State’s opinion that the
Missouri Supreme Court illegally expanded upon Roviaro.
This Court has stated that when it sets the bounds of a
defendant’s federal constitutional rights, vis-a-vis a state,
no state court may expand or restrict that right. Oregon
v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d
570, 576 (1975).
The State of Missouri believes that the Missouri Su-
preme Court’s unwarranted and unsupported expansion of
the rule of law stated in Roviaro is an illegal usurpation
of the authority and power vested solely in this Court.
Consequently, it is urged that this Court issue a writ of
certiorari to the Missouri Supreme Court and, upon re-
view, affirm the conviction of Wandix.
CONCLUSION
For the foregoing reasons the petition for a writ of
certiorari should be granted and the judgment and decision
of the Missouri Supreme Court reversed.
Respectfully submitted,
JOHN ASHCROFT
Attorney General
MICHAEL H. FINKELSTEIN
Assistant Attorney General
P.O. Box 899
Jefferson City, Missouri 65102
(314) 751-3321
Attorneys for Petitioner
Of Counsel
CHRISTOPHER LAMBRECHT
Al
APPENDIX
APPENDIX A
IN THE MISSOURI COURT OF APPEALS
ST. LOUIS DISTRICT
DIVISION III
No. 39,479
STATE OF MISSOURI,
Respondent,
V.
VINCENT WANDIX,
Appellant.
Appeal from the Circuit Court
County of St. Louis
Harry J. Stussie, Judge
OPINION FILED
November 21, 1978
A jury found defendant guilty of feloniously selling
heroin (§195.020, RSMo. 1969), and he has appealed the
judgment imposing ten years’ imprisonment. Defendant’s
sole point on appeal is that the trial court erred in refusing
to compel the state to disclose the name of a confidential
informant. Defendant did not testify but relied on alibi
evidence and now contends his own identity was an issue,
as to which the informant was a material witness. For
the state, an out-of-uniform police officer testified that an
informant, whom he did not name, had introduced him
to defendant who later sold him two capsules of heroin.
We affirm, concluding the trial court’s refusal to com-
pel disclosure was discretionary and not erroneous because
A2
defendant’s present contention as to his identity as the
seller was not specifically raised below.
The state’s principal witness was police officer Lee-
man Dobbins who testified he and another undercover
officer, Leon Bates, met defendant at a park and then
went to defendant’s residence; while Bates waited outside
Dobbins went into the house with defendant, who then sold
him two capsules of heroin. Dobbins testified on cross
examination that he and Bates were accompanied from the
park to defendant’s house by an unnamed person whom
defense counsel wanted him to name. In chambers, Dob-
bins testified the unnamed person was a “confidential in-
formant” who had introduced him to defendant at the
park; that the informant had followed him to but did not
enter defendant’s residence. The court denied defense
counsel’s oral motion to compel disclosure of the informant’s
name. This ruling is the first basis of defendant’s appel-
late argument that he was entitled to disclosure of the in-
formant’s name—on the issue of defendant’s identity as
the seller.
The state’s second witness was Officer Bates, whose
testimony did not fully track that of Dobbins. He testi-
fied that from some distance away he witnessed Dobbins’
and defendant’s initial conversation at the park; that he
followed in another car to a point “down the street” from
defendant’s residence and saw not only Dobbins and de-
fendant but also the “unidentified person” enter defendant’s
house.
After still another state’s witness had testified, de-
fendant made, and the trial court denied, his second motion
to compel the state to disclose the name of the unidentified
informant.
A3
As contended by the state, we conclude the trial court
did not err in denying either the first or the second mo-
tion to compel the state to identify the informant.
The first motion to disclose was made orally at the
close of Officer Dobbins’ cross examination wherein he
had testified the unidentified informer had merely intro-
duced him to the defendant and was not present in defen-
dant’s house at the time of sale. Defense counsel then
sought the informer’s identity because “. . . he is some kind
of a participant in the incident; it may be he instigated this
incident ....” Defense counsel made no trial contention,
as he does now, that defendant’s identity was at issue.
Aside from the vagueness of defendant’s motion we find
no error. Where an informer neither participates in nor
observes an unlawful purchase, where he merely intro-
duces the defendant to an officer who later makes the
purchase, the informer is nothing more than an informer
and disclosure of his identity is not required. State v.
Tilcock, 522 SW2d 60 [3, 4] (Mo.App. 1975).
The point made at trial was so vague it preserved
nothing for review, and, further, it was without merit for
the reason stated.
A similar issue arises from defendant's second motion
to disclose the informer’s identity, made after Officer Bates
had testified that from afar he had seen the informer enter
defendant’s house with Officer Dobbins. (This did not,
however, contradict Officer Dobbins’ testimony that no
one else was present at the drug transaction.) Defendant
on appeal—for the first time—contends the informer’s
identity was material since only he could contradict Of-
ficer Dobbins in naming defendant as the seller.
We hold defendant did not preserve the point for re-
view, either at trial or in his after-trial motion. In both,
A4
defendant contended his right to disclosure was based on
his unfounded assertions the informer was an instigator of
and participant in the sale. At no time did defendant con-
tend, as he does for the first time on appeal, that disclosure
was warranted because “identity is a crucial issue in the
case.”
The state’s contention that defendant has not pre-
served his point for review is squarely supported by State
v. Thompkins, 515 SW2d 808 [6] (Mo.App. 1974) holding:
“In view of the ‘particular circumstances’ of this
case in the respects heretofore pointed out, this court
is unwilling to say that the trial court, tested by ‘funda-
mental requirements of fairness,’ committed error in
not compelling ihe state to reveal the informant’s
identity, particularly so since appellant at no time in-
formed the trial court that doing so would, or might
possibly, refute the police officer’s identity of appel-
lant as the person making the illegal sale, as now con-
tended for the first time on appeal. ... This court has
no inclination to brand a trial court guilty of error
in refusing to strip an informant of his anonymity
when the facts and the arguments bearing on the
proposition are not made and argued to it at the times
it is called upon to rule on the claimed error, and, more
particularly, where, as here, the basis allegedly sup-
porting the charge belatedly emerges for the first time
as an afterthought on appeal.”
To the same effect concerning a defendant’s identity, see
State v. Hubbel, 494 SW2d 358 [5] (Mo.App. 1973).
We hold defendant has not shown the trial court erred
in failure to compel disclosure.
On our own motion, we have considered whether the
trial court’s rulings deprived defendant of a fair trial.
A5
Whether the state should have been compelled to disclose
the name of the confidential informant rested initially in
the trial court’s discretion. State v. Redding, 357 SW2d
103 [7, 8] (Mo. 1962). This depends on whether disclosure
of the identity of a non-participating informant is essential
to the determination of a material issue. As a general rule
communications made by informers to governmental of-
ficials are privileged. This is founded upon public policy—
public interest in effective law enforcement. By preserv-
ing their anonymity, citizens are encouraged to communi-
cate to law enforcement officers their knowledge of the
commission of crimes. The privilege is designed not for the
protection of the informer but for the protection of the
public interests. State v. Edwards, 317 SW2d 441 [5, 6]
(Mo. 1958). The issue of mandatory disclosure was fully
discussed in State v. Yates, 442 SW2d 21 [4-12] (Mo.
1969). There an unidentified informant led police to the
place of a narcotics sale and, unlike our case, actually ob-
served the sale. Despite this, the court upheld the trial
court’s refusal to compel disclosure of the informant, hold-
ing:
“Whether the defendant can have a fair trial with-
out requiring disclosure is a matter resting within the
discretion of the trial court. State v. Redding, Mo.
Sup., 357 SW2d 103[7]. In balancing the interest of
the individual in the proper preparation of his defense
against the interest of the public in promoting the
flow of information so as to protect society against the
criminal element each case must stand on its own
bottom, and under the facts of the particular case
consideration must be given to ‘the crime charged, the
possible defense, the possible significance of the in-
former’s testimony, and other relevant factors.’ .. .
A6
“The mere physical presence of the informer at
the scene of the crime is not sufficient to conclusively
establish that a defendant cannot have a fair trial
without disclosure of the identity of the informer.”
There, as here, the trial court did not abuse its discretion
in holding defendant was not denied a fair trial by with-
holding the name of the unidentified informer.
Judgment affirmed.
/s/ James D. Clemens
James D. Clemens, Judge
James R. Reinhard, Presiding Judge, Concurs
George F. Gunn, Jr., Judge, Concurs
AT
APPENDIX B
SUPREME COURT OF MISSOURI
EN BANC
No. 61201
STATE OF MISSOURI,
Respondent,
Vs.
VINCENT WANDIX,
Appellant.
Appeal From the Circuit Court, St. Louis County
Division No. 2
Honorable Harry J. Stussie, Judge
(Filed October 19, 1979)
Appellant, Vincent Wandix, was convicted in the Cir-
cuit Court of St. Louis County, Missouri, of selling a con-
trolled substance (§ 195.020, RSMo 1969), and his punish-
ment was assessed at imprisonment for a term of ten years.
Following rendition of judgment and imposition of sen-
tence, an appeal was perfected to the Eastern District of
the Court of Appeals. The case was transferred here after
opinion. We decide the case the same as on original ap-
peal. Mo. Const. Art. V, § 10.
On March 16, 1976, an indictment was filed in the Cir-
cuit Court of St. Louis County charging appellant with
the sale of heroin to undercover detectives on July 23, 1975.
At trial the State introduced the testimony of officers
Leeman Dobbins and Leon Bates of the St. Louis City
Police Department and Officer Michael McDonald and
chemist Rodger Dale Corcoran of the St. Louis County
Police Department. Appellant introduced the alibi testi-
A8
mony of Pierre and Deschiell Wandix, his brothers, and
of Unis Taylor and Albert Hirsch, friends.
The testimony of the officers showed the following:
Officers Bates and Dobbins met Officer McDonald at
the office of the St. Louis County Police Department in the
early evening on July 23, 1975. A confidential informant
was with Officer McDonald. Officer McDonald was not
previously acquainted with the informant. He was passed
along to him at the beginning of his shift with an assignment
to survey the undercover City officers and informant as they
made a drug transaction. Officer McDonald received re-
liable information from the informant on a substantial
number of occasions subsequent to the one at issue. The
informant was not previously known to Officer Dobbins
or Officer Bates. Dobbins did not use the informant at
any time subsequent to the incident at issue. Bates did
not testify as to any subsequent use.
The officers and the informant proceeded in two cars
to the Beechum Park area of the County where they were
to meet a drug dealer named Vincent Wandix. Wandix
was not personally known to Dobbins. Bates may have
seen him before. In Beechum Park, McDonald provided
loose surveillance by driving around the area. Bates was
dropped off at a corner to provide close surveillance while
Dobbins and the informant met Wandix. The informant
introduced Dobbins to Wandix as his “partner.” After
a brief exchange of words, Wandix told them to follow
him to a residence at 942 South Taylor.
Dobbins, the informant and Wandix proceeded to the
South Taylor address in two cars. Wandix drove a Cadillac.
Dobbins and the informant followed in their car. Officer
Bates was picked up and again dropped off near the South
Taylor address by Dobbins. After arriving at 942 South
A9
Taylor, Dobbins entered the residence with the person
identified and introduced by the informant as Wandix and
purchased $20 worth of heroin from him. There is an un-
certainty as to whether the informant entered the resi-
dence. Dobbins testified that he did not, that he remained
in the car parked outside. Bates testified that the inform-
ant did accompany Dobbins and Wandix into the house.
There is no claim or indication that anyone other than Dob-
bins, Wandix, and possibly the informant was in or at 942
South Taylor. The appellant was identified in court as
the seller of the heroin by both Dobbins and Bates.
After completing the transaction, the officers re-
grouped and returned to the County Police offices where
the purchased substance was turned over to the police
chemist, Rodger Corcoran, and determined to be heroin.
At the close of the trial, the jury returned a verdict
of guilty.
The essential issue on appeal is whether the inform-
ant’s identity should have been disclosed to appellant.
Appellant contends the trial court erred in overruling
his motion to disclose the confidential informant.
The State contends that appellant failed to properly,
raise and preserve the disclosure issue and that the trial
court properly protected the identity of the informant.
The State, in its brief, presents two reasons for not
reaching the merits of the disclosure issue. The first is
that appellant’s motion was not timely under Rule 25.31.
That rule provides, in relevant part,: ‘“* * * motions for
discovery should .be made not later than twenty days after
arraignment in the court having jurisdiction to try the
offense charged.” Motions to Disclose informants should
ordinarily come within the discovery time limit since Rule
Al0
25.39, enacted simultaneousiy with Rule 25.31, addresses
the circumstances in which the identity of an informant is
subject to disclosure. It would certainly seem desirable
to make motions to disclose informants within Rule 25.31
limits, where possible, since timely motions would avoid
delay, surprise and confusion.
However, the question of the timeliness of the motion
is not properly raised in this case. The prosecutor did not
oppose the motion on grounds of timeliness at trial. The
trial judge took the motion under consideration, heard
testimony on the confidential nature of the informant and
the informant’s relation to the transaction at issue, and
specifically ruled the motion on the merits of disclosure.
In these circumstances, , ome assertion by the State is with-
out merit.
The second reason given by the State for not reaching
the merits of the disclosure issue is that appellant failed
to properly raise and preserve the issue at trial. The State
contends: “The argument that identity is a crucial issue in
the case and that therefore the ‘unidentified individual’ was
a necessary and material witness for the appellant, for that
reason, is advanced for the first time on appeal. For this
reason this point is not preserved for review, because never
presented to the trial court in the context of a mistaken
identity situation.”
The issue as to disclosure does not appear, from the
record, to have arisen until cross-examination of Officer
Dobbins. When appellant’s attorney attempted to question
Officer Dobbins as to the identity of the informant, the
prosecutor asked to approach the bench and a conference
was held. Appellant moved for disclosure. The pros-
ecutor objected on the grounds of confidentiality. The
court recessed the trial for a hearing in chambers as to the
matter of the unidentified informant. After further ex-
All
amination of Officer Dobbins in chambers, appellant’s at-
torney moved for disclosure: “* * * [F]Jor the reason
that I don’t think he qualifies as Mr. Nangle (the pros-
ecutor) would have the court, or ask the court to believe as
being a confidential informant. He’s equally a participant
in the alleged offense as any other police officer that was
there. He was present when this was supposed to have
taken place. He’s identified my client to the Police Officer,
and indicated to him that he was Vincent Wandix, and
I think that in fact he is the only other lay-witness to this
case, that would be available to either side. I don’t know
who he is but he is or has a part in this matter in this issue
or controversy in dispute. There is alibi defense pleadings
in this case; ~ there are alibi defense witnesses that have
been endorsed, and this unidentified individual is the only
other lay-witness who can contradict, disspell [sic], or
prove the issues that are in controversy except the govern-
ment witnesses, and I don’t think this defendant can have
a fair trial if the State cloaks him as an unidentified con-
fidential enformant, * * *.” (Emphasis added.)
The motion was overruled, “at this * * * particular time
during the trial.”
A further hearing on the Motion to Disclose was held in
chambers during the testimony of Officer McDonald. This
was after Officer Bates had testified that the informant ac-
companied Dobbins and Wandix into the residence at 942
South Taylor. After McDonald was examined in cham-
bers the court ruled finally on the Motion to Disclose.
After taking cognizance of defendant’s alibi defense, the
court overruled the motion, citing State v. Taylor, 508
S.W.2d 506 (Mo: App. 1974).
We must conclude from the record that the trial court
and the parties recognized that identity was a crucial issue
in the case.
Al2
We turn then to the essential question whether the in-
formant’s identity should have been disclosed to appellant.
In Roviaro v. United States, 353 U.S. 93, 59-62 (1957)
the United States Supreme Court addressed our question,
as follows: .
“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. Sche v. United
States, 305 U. S. 251, 254; In re Quarles and Butler, 158
U.S. 532; Vogel v. Gruaz, 110 U. S. 311, 316. The pur-
pose 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 ob-
ligation.
* * *
“A * * * limitation on the applicability of the
privilege arises from the fundamental requirements of
fairness. Where the disclosure of an informer’s iden-
tity * * * 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.
* * *
“We believe that no fixed rule with respect to dis-
closure 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 non-
disclosure erroneous must depend on the particular cir-
Al3
cumstances of each case, taking into consideration the
crime charged, the possible defenses, the possible sig-
nificance of the informer’s testimony, and other rel-
evant factors.”
The Roviaro concept was adopted as Missouri law by
this Court in State v. Edwards, 317 S.W.2d 441 (Mo. banc
1958). See also State v. Yates, 442 S.W.2d 21 (Mo. 1969) ;
State v. Nafziger, 534 S.W.2d 480 (Mo. App. 1969).
In Roviaro, the court posited three possible defenses
for which the informant’s testimony could be vital: entrap-
ment, mistaken identity of the person or package, and lack
of knowledge of the contents of the package. Roviaro,
Supra, at 64; Nafziger, supra, at 482.
The State argues that appellant has failed to show that
the testimony of the informant would in fact be exculpatory.
The Roviaro rule requires disclosure where the informant’s
testimony “* * * is critical to the issue * * *” or “* * *
highly relevant to the issue * * *,” Nafziger, supra, at
483. The State also argues that disclosure is not necessary
where the informant did not participate in the transaction.
As the court stated in Nafziger, however: “The State’s
insistence upon the requirement of participation has some
support in the literal language of the cases, but an exam-
ination of the facts of the cases indicates that participation
as it is used in the language of the cases is, in reality, a
reference to the presence of the informant at some critical
Stage of the proceedings so that he is qualified to testify
concerning essential facts in the case.” Id. at 482.
In summary, the rule requires disclosure where the
informant was in a position to offer testimony relevant and
crucial to the defense; i.e. disclosure would not be required
if the testimony were on minor or collateral issues or if
the testimony would be merely cumulative of that of other
Al4
neutral parties. The degree of cruciality necessary to
require disclosure must be balanced against the State’s need
for non-disclosure; i.e. possible non-disclosure where the
informant is still active in other investigations and the ac-
cused’s need is minimal.
The crucial issue in the instant case was the identity
of the drug seller. It is undisputed that the person who
sold the drugs was the person introduced to the undercover
officer by the informant. The informant at least observed
the officer and the seller enter the house on South Taylor.
Whether the informant actually entered the house as well
is irrelevant to the question of his ability to testify as to
identity; there is no suggestion that anyone else was in
the house. The informant was thus in a position to offer
highly relevant and material testimony. The appellant’s
need for the testimony was great. He had alibi wit-
nesses, but there were no other witnesses who could offer
direct testimony except for the police officers. In such
circumstances of relevancy and need, the State’s interest
on balance, is weak. This was not an “active” informant
who was still being used in ongoing investigations. Al-
though the informant had provided useful and accurate
information in other cases, that information was supplied
only in the eight months immediately subsequent to the
sale at issue. The trial occurred some 21 months after the
sale, or 13 months after the informant stopped supplying
information. The State’s need is minimal. Although the
State may have some interest in being able to tell an
informant that his identity will never be revealed, even
after he is inactive, this interest is not of sufficient magni-
tude to justify non-disclosure where the informant could
provide relevant testimony at trial.
We must conclude that disclosure of the identity of the
informant was “essential to a fair determination” on the
Al5
facts and issues of this case. The trial court abused its
discretion in failing to require disclosure.
The judgment is reversed and the case is remanded
for new trial.
Robert T. Donnelly, Judge
Bardgett, C.J., Seiler and Welliver, JJ.,
concur; Rendlen, J., dissents in separate
dissenting opinion filed; Morgan, J., and
Finch, Sr.J., dissent and concur in sep-
arate dissenting opinion of Rendlin, J.;
Higgins, J., not sitting because not a
member of the Court when cause was
submitted.
Al6
SUPREME COURT OF MISSOURI
en banc
No. 61201
STATE OF MISSOURI,
Respondent,
VS.
VINCENT WANDIX,
Appellant.
DISSENTING OPINION
(Filed October 19, 1979)
For reasons herein set forth I respectfully dissent.
The identity of an informant who is but an observer
or minor participant in a criminal transaction need not
be disclosed when, as here, no showing is made that the
informant’s testimony would be other than cumulative or
repetitive of the state’s evidence. Accordingly, the trial
court’s refusal to require disclosure was not error and the
judgment of conviction should be affirmed.
The essential facts are not complex and though set
forth by the majority, are reiterated for ready compari-
son with the other cases hereinafter discussed. On July
23, 1975, at about 5:30 p.m., Officers Dobbins and Bates of
the St. Louis Police Department accompanied an informant,
who had been introduced to them by another officer, to a
residence in the Beechum Park area. They went to find
one Vincent Wandix for the purpose of arranging a heroin
purchase and the informant was to introduce Dobbins to
defendant Wandix. Locating Wandix without apparent
difficulty informant made the introduction stating, ‘This
is a partner of m’ ~” and identified Wandix by name.
Al7
After the initial conversation Wandix told Dobbins “to
follow him” whereupon Dobbins, the informant and Bates
(who was picked up en route) followed Wandix as he drove
a Cadillac’ automobile to 952 South Taylor. Bates, play-
ing a backup role, was dropped off near the corner about
three houses from the South Taylor residence. According
to Dobbins, who was immediately involved at the scene,
informant remained in the car and did not enter the house.
From Bates’ position down the street, it appeared to him
that Wandix, the informant and Dobbins entered the 952
South Taylor residence.’ I believe the variance in the proof
as to whether informant went into the house or remained
outside is not controlling, for (1) if he remained outside
as Dobbins [whose vantage point was considerably better
than Bates] described, he was neither a participant in nor
an observer of the crime; or (2) if he went inside there
is no testimony he was an observer much less a partici-
pant and only by way of conjecture or speculation can
he be so connected. The direct testimony of Dobbins was
to the contrary.
Inside the residence Wandix asked Dobbins what he
wanted and Dobbins responded that he “needed two
things.” Wandix then walked down the hallway, return-
ing in a few minutes with 20-30 capsules in a plastic con-
tainer from which he removed two capsules and exchanged
them with Dobbins for $20.00. Laboratory analysis dis-
closed the capsules contained heroin.
1. Dobbins testified that Wandix was driving a 1973 Cadillac
convertible with a red top over a white body. Officer Bates
described the car as a late mode] red Cadillac.
2. Police officer Michael McDonald, also involved in the
surveillance, testified that driving in a separate car, he followed
Dobbins and Bates to Beechum Park and saw them there with
the informant. Maintaining this loose surveillance, he later
drove to the South Taylor area and saw the three men in their
car in the vicinity of the Wandix residence.
Als
Both officers, based on their protracted personal ob-
servation of Wandix, made positive in-court identifications.
During trial (three previous proceedings had ended
in mistrial) defendant made his unseasonable request that
informant’s name be disclosed, which I believe was prop-
erly refused.
This case is strikingly similar to State v. Tilcock, 522
S.W.2d 60 (Mo. App. 1975). There an informant introduced
an illicit drug seller to an undercover police officer in a
tavern. The three men retired to a hallway in the rear
of the tavern where informant, acting as a lookout, stood
five or six feet away from the spot where the officer and
the accused bought and sold amphetamine sulfate. On
those facts the court of appeals considering the effect of
Roviaro v. United States, 353 U.S. 53 (1957), upheld the
trial court’s denial of defendant’s motion for disclosure of
the confidential informant because the informant’s par-
ticipation was minor and another witness was present.
Another case remarkably close on its facts is State v.
Taylor, 508 S.W.2d 506 (Mo. App. 1974). In Taylor the
informer went with the police officer into the residence
where the transaction occurred and there, as in the case at
bar, the informer was not the sole participant. Further,
there was strong testimony establishing the identity as well
as the guilt of defendant. The court of appeals held the
trial judge properly denied defendant’s request for dis-
closure of the informant’s identity. I believe the carefully
reasoned opinions in Tilcock and Taylor are persuasive and
the rationale there expressed should be applied in our
case. However, the majority, contrary to Taylor and Til-
cock, would reverse relying on Roviaro v. United States.
That reliance, I submit, is misplaced because affirmance
here would not be contrary to, but instead consistent with
the holding of Roviaro. In Roviaro, this significant state-
Al9g
ment appears: “the government’s informer was the sole
participant, other than the accused, in the transaction
charged.” 353 U.S. at 64. (Emphasis added.) Thus, if
Officer Dobbins had not testified and the state had sought
to withhold his identity, Roviaro would require disclosure
as to Dobbins for he was the sole participant.
The test for determining disclosure discussed in Ro-
viaro requires a balancing of the public interest in protect-
ing the flow of information against the individual’s right
to prepare his defense. This determination depends upon
such facts as the crime charged, possible defenses, the
likely significance of the informer’s testimony and other
relevant factors. 353 U.S. at 62. It is important that we
undertake a detailed examination of that decision.
The Roviaro court characterized the right of the state
to guard an informant’s identity as the informer’s privilege
or government privilege. As the court explained, 353
U.S. at 59, ‘The purpose of the privilege is the furtherance
and protection of the public interest in effective law en-
forcement. The privilege recognizes the obligation of cit-
izens to communicate their knowledge of the commission of
crimes to law enforcement officials and, by preserving
their anonymity, encourages them to perform that obliga-
tion.” Defendant Roviaro was charged in two counts by a
federal grand jury in connection with illicit sale and pos-
session of heroin and the indictment itself (unlike the case
at bar) clearly showed the deep involvement of the in-
former. As stated in the opinion, Count I charged that
he sold heroin to one “John Doe” and Count II charged him
with fraudulently and knowingly receiving, concealing,
buying and facilitating the transportation and concealment
after importation of heroin. 353 U.S. at 55. “John Doe”
(the informant) was expressly mentioned as the partic-
ipant to whom the accused made the sale charged in Count
_—
A20
I, and though “John Doe” was not expressly mentioned
in the second count, ‘“‘Doe” was closely tied and implicitly
a participant (on behalf of the state) to that charge as
well. 353 U.S. at 63.
The controlling facts of Roviaro were as follows: The
informant met with four police officers and, apparently by
prearrangement, one of the officers secreted himself in
the trunk of the informant’s Cadillac automobile. The in-
formant, alone in the passenger compartment, drove his
automobile to a particular location in Chicago. After
about one hour’s wait, Roviaro (the accused) arrived in a
Pontiac automobile and immediately (again apparently by
prearrangement) entered the informant’s Cadillac taking a
front seat beside the informant. Roviaro greeted the in-
formant and directed him where to drive. These two were
the only persons in the passenger compartment of the
vehicle as they drove a circuitous route to another loca-
tion in the city. At one point Roviaro admonished in-
formant ‘‘to pull over to the curb, cut the motor, and turn
out the lights so as to lose a ‘tail.’”” Roviaro then told the
informant to continue “further down.” He then asked
about money which the informant owed him and advised
the informant that he had brought him ‘three pieces at this
time.” Shortly thereafter Roviaro ordered the car stopped,
alighted, walked a few feet to a nearby tree where he
picked up a small package, returned to the open right front
door of the Cadillac, made a motion as if depositing a
package in the car, then waved to the informant and
walked away. As he was doing this, Roviaro said “here
it is” and “I will call you in a couple of days.” The officer
hidden in the trunk then emerged and another who had
been following at a distance in another car went to the
Cadillac, recovered the package from the floor of the car__
which contained “three glassine envelopes containing a
white powder.” The powder was heroin. Roviaro was
A21
arrested at his home and when taken to the police station
was confronted by the informant and, significant to the
decision, informant denied that he knew or had even seen
Roviaro. 353 U.S. at 56-58.
The Court, requiring disclosure, pointed to the follow-
ing facts, only one of which (i.e., #(4) set forth below) is
similar to the case sub judice. (1) The indictment, Count
I, referred specifically to the sale of heroin to “John Doe”
and did so by implication in Count II. (2) So far as
Roviaro knew, he and “John Doe” were alone and unob-
served during the crucial occurrences for which he was
indicted. (3) Most important, “The government’s informer
was the sole participant, other than the accused, in the
transaction charged.” (Emphasis added.) (4) The informer
was the only witness in a position to amplify or contradict
the testimony of government witnesses. In our case the
informant could add or detract only as to preliminary
matters, not the facts of the crime. Thus, even as to
this fact the cases are dissimilar. (5) A government wit-
ness testified that “Doe” [the informant] denied knowing
petitioner or ever having seen him before the confrontation
at the police station immediately after the arrest. (6) An
additional distinguishing factor appears at page 55 where
the court referred to the informer not as a mere police
“stool pigeon” but instead ‘‘an undercover employee” who
took a material part in bringing about the possession of
certain drugs by the accused. Three of the police officers
described “Doe” as an informer and a “special employee.”
From this it appears that ‘‘Doe” was more than the usual
“informant” and had sufficient police connection to bolster
defendant’s claim that here was a man whose identity
should be disclosed.
The Court concluded “that, under these circumstances
the trial court committed prejudicial error in permitting
the government to withhold the identity of its undercover
A22
employee in the face of the repeated demands by the ac-
cused for his disclosure.” 353 U.S. at 65. (Emphasis
added.) From this examination of the salient facts upon
which the court based its decision, I do not see how it can
be said that Roviaro requires reversal in the case at bar.
The dispositive facts here stand in stark contrast. Instead.
it can be more reasonably stated from the facts and gen-
eral language of the opinion, that Roviaro is authority for
denying disclosure and upholding the conviction. Further
it should be noted that the court stated, “We believe the
no fixed rule with respect to disclosure justifiable. The
problem is one that calls for balancing of the public in-
terest in protecting the flow of information against the
individual’s right to prepare his defense. Whether a proper
balance renders non-disclosure erroneous must depend
upon 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.” 353 U.S. at 62. (Emphasis added.) In
that connection the Court referenced several cases wherein
several courts of appeals had considered the government’s
right to withhold the identity of an informer. Among those
was Sorrentino v. United States, 163 F.2d 627 (9th Cir.
1947), in which the accused was charged with both sale
and possession of narcotics. The government agent saw
the accused go into a house with the informer after ar-
rangements for a sale had been overheard and the informer
later delivered the narcotics to the agents. There, the
informer was, as in Roviaro, the sole participant. Dis-
cussing Sorrentino, the court went on to state, “the ninth
circuit stated that the accused was entitled to disclosure
under these circumstances but the conviction was affirmed
on the grounds that ‘the record demonstrated that the ac-
cused knew the identity of the informer.’” 353 U.S. at
62 n. 12. Obviously, the same is true in the case before
A23
us for it was the informer who arranged the meeting be-
tween the police officers and the accused, introduced them
to the accused, knew where he could be found and knew
his name. Apparently relying on his knowledge of the
informant and his relationship with him, Wandix in-
vited Dobbins and the informant to follow him to the
Taylor Street residence and there the sale was made.
Finally, in a strongly written dissent which would
have denied disclosure of the identity of even the sole
participant informant in Roviaro, Mr. Justice Clark made
this statement which history tells us was prophetic and
is tragically cogent today. Explaining the decision’s de-
structive effect on the enforcement of the narcotics laws,
Justice Clark stated:
The short of it is that the conviction of a self-con-
fessed dope peddler is reversed because the Govern-
ment refused to furnish the name of its informant
whose identity the undisputed evidence indicated was
well known to the peddler. Yet the Court reverses
on the ground of ‘unfairness’ because of the Govern-
ment’s failure to perform this fruitless gesture. In my
view this does violence to the common understanding
of what is fair and just.
First, it is well to remember that the illegal traffic
in narcotic drugs poses a most serious social problem.
One need only read the newspapers to gauge its enor-
mity. No crime leads more directly to the com-
mission of other offenses. Moreover, it is a most dif-
ficult crime to detect and prove. Because drugs come
in small pills or powder and are readily packaged in
capsules or glassine containers, they may be easily
concealed. They can be carried on the person or even
in the body crevasses where detection is almost im-
A24
possible. Enforcement is, therefore, most difficult
without the use of ‘stool pigeons’ or informants.
Their use has long had the approval of the court.
To give them protection governments have always
followed a policy of nondisclosure of their identities.
Experience teaches that once this policy is relaxed—
even though the informant be dead—its effectiveness
is destroyed. Once an informant is known the traf-
fickers are quick to retaliate. Dead men tell no tales.
The old penalty of tongue removal, once visited upon
the informer Larunda, has been found obsolete. 353
U.S. at 66-67.
Here, the majority with little mention of the Roviaro
facts has seized upon a part of the general language in the
decision and carried it beyond the contextual limits of
the case. It would permit a defendant in any case where
an informant was a mere bystander or observer to make
the vague conclusory allegation that the informant, who
observed facts preliminary to an actual sale of narcotics,
might be of help and on such a general allegation dis-
closure would be required. This it does without requiring
that (1) defendant first show the reasonable likelihood
that informant’s testimony would be of reasonable benefit
to him, or (2) there be a showing, as in Roviaro that he
participated in the commission of the crime.
In short, the mischief resulting from the majority’s
opinion which unreasonably extrapolates the general lan-
guage of Roviaro would effectively destroy the privilege
of the confidential informer in drug cases and require dis-
closure on the basis of mere speculation that an informant
might be able to help the defendant in some way by “am-
plifying” or denying testimony of the police officer. This
would be so, where as here, an informant gives informa-
tion and merely leads the police officers to a place where
A25
the drug peddler is conducting his business. Such was
not the intent of Roviaro and constitutes an unwarranted
extension of the holding in that case which can only lead
to stultification of our law enforcement system by ef-
fectively removing one of the state’s most valuable en-
forcement tools, the confidential informant. This radical
departure should not be adopted as the law in Missouri
and indeed in McCray v. Illinois, 386 U.S. 300 (1967), the
Supreme Court reexamining Roviaro ten years later made
clear that it should not be read broadly to require dis-
closure of an informant’s identity in various procedural
stages of criminal prosecutions, that there is no justifica-
tion for a fixed rule with respect to disclosure and reiterated
that in Roviaro the informer “was the sole participant
other than the accused.” Id. at 310-311. The McCray
Court reemphasized that a most important consideration
before disclosure would be required was “the possible
significance of the informer’s testimony.” Id. Stated
otherwise, the trial court need not blindly accept defen-
dant’s assertion that the informant’s testimony would be
helpful. Instead, it must first determine the reasonable
likelihood of such “helpful testimony” and thereafter weigh
such “fact” in the balance.
Numerous courts have applied the Roviaro balancing
test to the disclosure issue and have held that the name
of an informant, though a minor participant in a criminal
transaction and an eyewitness to the transaction in ques-
tion, need not be disclosed.* As hereinabove noted there
3. Although the great weight of authority since Roviaro
supports the proposition that the identity of a confidential in-
formant who plays only a minor part in a criminal transaction
need not be disclosed, some courts have reached a different
result. See People v. Goliday, 8 Cal.3d 771, 778-779, 505 P.2d 537,
106 Cal.Rptr. 113 (Cal. 1973). That decision was based partially
on Cal. Evid. Code, § 1041. The Texas Court of Criminal Ap-
(Continued on following page)
A26
is some question in the evidence whether informant was
present when the transaction occurred, but the more plau-
sible testimony demonstrated he was not and that his ob-
servations included only the parties’ preliminary meeting.’
The United States Court of Appeals for the First Cir-
cuit recently confronted the disclosure issue on a similar
fact pattern in United States v. Estrella, 567 F.2d 1151 (1st
Cir. 1977). There, a confidential government informant
arranged a sale between an undercover agent and the de-
fendant and was an eyewitness to two final purchases of
heroin. The court, rejecting a Roviaro based claim stated,
. the informant neither dealt directly with
Alicea in any manner [citations omitted], nor was he a
significant participant in the criminal events. ... The
informant’s contribution could at best be marginal
[citations omitted] and there is no indication that his
testimony would be other than cumulative of that of-
Footnote continued—
peals has held that the identity of an eyewitness participant must
be disclosed. James v. State, 493 S.W.2d 201, 202 (Tex. Crim.
App. 1973). However, James has been distinguished on two
recent occasions by the same court. Etchieson v. State, 574
S.W.2d 753, 757 (Tex. Crim. App. 1978); Carmouche v. State,
540 S.W.2d 701, 703 (Tex. Crim. App. 1976). In People v. Lewis,
57 Ill.2d 232, 311 N.E.2d 685, 689 (Ill. 1974), the Illinois Supreme
Court also held that a defendant has a right to interview a con-
fidential informant who is an eyewitness participant to a drug
transaction. These cases are readily distinguishable from that
before us because here there has been no showing that informant
witnessed the heroin sale.
4. A distinction has been made between participant in-
formants (those who have introduced police officers to the sus-
pect or aided in arranging a sale) and those who merely provide
information. State v. McCann, 543 S.W.2d 504 (Mo. App. 1976).
“The likelihood that fundamental fairness will require disclosure
the identity of the latter group is substantially less.” Id. at 507.
But participation alone is not enough to require disclosure and is
but one aspect of the multi-factor analysis required. State v.
Taylor, 508 S.W.2d at 512; Roviaro v. United States, 353 U.S. at
62. See State v. Milligan, 71 N.J. 373, 365 A.2d 914, 922 (NWJ.
1976).
alin
A27
fered by the government’s witnesses who were pres-
ent. ;
Id, at 1153. (Emphasis added.) In our case, if we assume
informant was present at the final transaction, there is
absolutely no evidence suggesting he was a participant
much less a significant participant. Moreover, appellant
here failed to indicate any “concrete circumstances” that
would justify disclosure and failed to offer any evidence
indicating the informant’s testimony would be other than
a reiteration of the state’s evidence. 567 F.2d at 1153.
In United States v. Alonzo, 571 F.2d 1384 (5th Cir.
1978), cert. denied, 99 S.Ct. 147 (1978), the informant was
present when numerous sales of narcotics occurred. The
court rejected the contention that failing to disclose the
identity of the informant was error stating, “It is well
settled that the government is not required to disclose
the identity of an informant who is a mere tipster and not
an active participant in the offense charged even though
he was present during the transaction in question.” Id. at
1387. Accord. United States v. Morris, 568 F.2d 396, 399-
400 (5th Cir. 1978); United States v. McGruder, 514 F.2d
1288, 1291 (5th Cir. 1975), cert. denied, 423 U.S. 1057
(1976); United States v. D’Amato, 493 F.2d 359, 366 (2d
Cir. 1974), cert. denied, 419 U.S. 826 (1974). Certainly in
this case where it is shown that the informant merely
introduced Wandix to the officer and followed him to the
house (or may have entered) in which the crime was
committed, the trial court did not abuse its discretion
in denying the motion for disclosure.
In State v. Milligan, 71 N.J. 373, 365 A.2d 914 (N.J.
1976), the New Jersey Supreme Court recently dealt with
the disclosure issue under facts nearly identical to ours,
An informant accompanied a police officer to a street
corner location where he introduced the officer to defen-
A28
dant and observed as a sale was arranged. Subsequently
all three drove to the defendant’s house and while the
informant was out of the room, the sale was made. The
New Jersey Supreme Court concluded that given the
informer’s limited involvement in the crime and the specu-
lative significance of the testimony, the defendant did not
demonstrate that his interests outweighed the state’s in-
terest in nondisclosure. There, as here, the informant’s
role was minor and the significance of his possible testi-
mony a matter of conjecture.
Similarly, the Colorado Supreme Court in People v.
Marquez, 190 Colo. 255, 546 P.2d 482 (Colo. 1976) ruled
against disclosure on a case involving an anonymous in-
formant who arranged a meeting of an undercover officer
and a seller of heroin. The informant and the officer went
to the seller’s house where the informant introduced him
to the officer. Next, informant asked the seller whether
he had the heroin. The seller replied affirmatively and
handed a red balloon filled with heroin to the informant
who in turn handed it to the officer who paid for the drug.
On those facts, the Colorado Supreme Court upheld the
ruling of the trial court denying disclosure. Clearly, the
informant’s involvement in our case was minimal com-
pared to that of the informer in Marquez.
Iowa, in State v. Sheffey, 243 N.W.2d 555, 559-560
(Iowa 1976), faced a similar fact pattern in which a con-
fidential informant introduced an undercover police officer
to a seller of amphetamines and was present when a sale
took place. The officer and informant then departed. The
Iowa court, reasoning that the seller could reasonably be
deemed to know the informant and that the seller made
no more than a speculative showing that the informant’s
testimony would have been helpful, held the denial of
disclosure proper.
A29
It is generally recognized that defendant has a sig-
nificant burden of proving that the disclosure of a con-
fidential informant is necessary for a fair determination
of defendant’s case and that the need outweighs the gov-
ernment’s interests. Mere speculation on the defendant’s
part that the testimony of the confidential informant will
be helpful is not enough. In re United States, 565 F.2d
19, 23 (2d Cir. 1977), cert. denied, 98 S. Ct. 3082 (1970);
United States v. Marshall, 532 F.2d 1279, 1282 (9th Cir.
1976); United States v. Alvarez, 472 F.2d 111, 113 (9th
Cir. 1973), cert. denied, 412 U.S. 921 (1973); United States
v. Skeen, 449 F.2d 1066, 1070 (D.C. Cir. 1971). In the
case at bar, defendant has offered only his conclusory
assertion (belatedly made by his oral motion during trial)
that the informant’s testimony might be helpful. This
may legitimately be characterized as speculation and con-
jecture hardly sufficient to meet the significant burden
described in the flood of cases interpreting Roviaro. In
sum, it strains credulity to believe that the informant
would offer any testimony helpful to appellant’s cause.
From the evidence, it is clear that informant and defendant
knew one another. Informant knew Wandix by name,
knew his business and where to find him. It is equally ap-
parent that Wandix knew informant because solely on
the informant’s word he was willing to accept a new ac-
quaintance (Dobbins) and take him to his (Wandix) home
and there to deal in heroin. How can we give unques-
tioned credence to the defendant’s contention that he did
not know the informant or claim the state “cloaked” him
from defendant?® If we somehow assume defendant did
5. During the testimony the first day of the fourth trial
of this cause the following occurred:
MR. SCHWARTZ: [defense counsel] At this time, Judge
we make an oral Motion and request that the State disclose
the name and address of this so-called individual that was
present during the course of this incident for the reason that
(Continued on following page)
A30
not know his name, this fact does not change the compel-
ling inference that defendant knew the man and thus dilute
his counsel’s belated claim that, “I don’t know who he is.
..’ Also, there is little or no likelihood that defendant
could have obtained beneficial testimony from the infor-
mant. This, coupled with the fact two police officers posi-
tively identified Vincent Wandix and one of them testified
directly on the commission of the crime is also supportive
of the court’s refusal to sustain defendant’s request for
disclosure. See United States v. Soles, 482 F.2d 105, 109
(2d Cir. 1973), cert. denied, 414 U.S. 1027 (1973); United
States v. Davis, 487 F.2d 1249, 1251 (5th Cir. 1973); United
States v. Russ, 362 F.2d 843, 845 (2d Cir. 1966), cert. de-
nied, 385 U.S. 923 (1967).
I would hold that when a confidential informant is a
minor participant in a transaction and the defendant
makes no showing that the informant’s testimony would
be other than cumulative and repetitive of the state’s
evidence, the trial judge does not abuse his discretion in
Footnote continued—
I don’t think he qualifies as Mr. Nangle would have the
court, or ask the Court to believe as being a confidential
informant. He’s equally a participant in the alleged offense
as any other police officer that was there. He was present
when this was supposed to have taken place. He’s identified
my client to the Police Officer, and indicated to him that
he was Vincent Wandix, and I think that in fact he is the
only other lay-witness to this case, that would be available
to either side. I don’t know who he is, but he is or has
a part in this matter in this issue or controversy in dispute.
There is alibi defense pleadings in this case; there are alibi
witnesses that have been endorsed, and this unidentified
individual is the only other lay-witness who can contradict,
disspel, or prove the issues that are in controversy except
the government witnesses, and I don’t think this defendant
can have a fair trial if the State cloakes [sic] him as an
unidentified confidential informant, and doesn’t let us try
to ascertain what his testimony would be—if it would help
this defendant, and help Mr. Wandix in counteracting any
of the evidence in this case. And I think they are cloaking
him as a confidential informant without some other infor-
mation.
A31
denying disclosure. State v. Redding, 357 S.W.2d 103, 108
(Mo. 1962); State v. Edwards, 317 S.W.2d 441, 447 (Mo.
1958). For these reasons, the judgment of the trial court
should be affirmed.
POO OOOO OCS O80 SOS SOOO S SSS S ESTO SO OS OSES OSC CSCS EESSCCSeSeSeCeSsS
Albert L. Rendlen, Judge
A32
APPENDIX C
IN THE
SUPREME COURT OF MISSOURI
No. 61201
STATE OF MISSOURI,
Respondent,
V.
VINCENT WANDIX,
Appellant.
MOTION FOR REHEARING
(Filed November 2, 1979)
The State of Missouri, respondent herein, by Attorney
General John Ashcroft, respectfully requests that this
Court rehear and reconsider its October 19, 1979, Opinion
in this case because it misinterprets, misquotes, and mis-
understands material matters of law and also fails to cor-
rectly ascertain the pertinent facts. Rule 84.17.
Suggestions
In its October 19, 1979, Opinion reversing the appel-
lant’s conviction for the sale of heroin this Court announced
a rule of law so unique and so out of the main stream of any
previous judicial opinion that it is forced to principally
rely on a single Missouri Court of Appeals decision.
Stated briefly, this Court concluded that Judge Stussie
prejudicially erred in failing to order the disclosure of an
informant solely because that informant introduced police
officers, posed as drug purchasers, to the appellant. Ap-
parently, because the weight of evidence supports the con-
ee
PN a eo
ae
Olina TRACE
os Ae eta
A33
clusion that only a police officer and the appellant were
present at the drug sale, this Court concluded that the
informant’s nonparticipation in the actual crime is irrel-
evant. This Court found that the identity of the informant
had to be disclosed because his introduction of police of-
ficers to the appellant placed him “in a position to offer
testimony relevant and crucial to the defense... .”
What is interesting about this conclusion is that it
purports to be based upon Roviaro v. United States, 353
U.S. 53, 77 S.Ct. 623 (1957). While the United States
Supreme Court did state that no fixed rule with respect
to disclosure was justifiable, and fundamental requirements
of fairness require disclosure of an informer’s identity
where it is relevant and helpful to the defense of an ac-
cused, these words become meaningful and lend guidance
only when viewed in light of subsequent statements made
by the Court in Roviaro:
The circumstances of this case demonstrate that
John Doe’s possible testimony was highly relevant and
might have been helpful to the defense. So far as
petitioner knew, he and John Doe were alone and un-
observed during the crucial occurrence for which he
was indicted. Unless petitioner waived his constitu-
tional right not to take the stand in his own defense,
John Doe was his one material witness. Petitioner’s
opportunity to cross-examine Police Officer Bryson and
Federal Narcotics Agent Durham was hardly a sub-
stitute for an opportunity to examine the man who
had been nearest to him and took part in the transac-
tion. Doe had helped to set up the criminal occurrence
and had played a prominent part in it. His testimony
might have disclosed an entrapment. He might have
thrown doubt upon petitioner’s identity or on the
identity of the package. He was the only witness who
A34
might have testified to petitioner’s possible lack of
knowledge of the contents of the package that he ‘trans-
ported’ from the tree to John Doe’s car. The desirabil-
ity of calling John Doe as a witness, or at least inter-
viewing him in preparation for trial, was a matter for
the accused rather than the Government to decide.
Finally, the Government’s use against petitioner
of his conversation with John Doe while riding in Doe’s
car particularly emphasizes the unfairness of nondis-
closure in this case. The only person, other than peti-
tioner himself, who could controvert, explain or am-
plyify Bryson’s report of this important conversation
was John Doe. Contradiction or amplification might
have borne upon petitioner’s knowledge of the con-
tents of the package or might have tended to show an
entrapment.
This is a case where the Government’s informer
was the sole participant, other than the accused, in the
transaction charged. The informer was the only wit-
ness in a position to amplify or contradict the testi-
mony of government witnesses. Moreover, a govern-
ment witness testified that Doe denied knowing peti-
tioner or ever having seen him before. We conclude
that, under these circumstances, the trial court com-
mitted prejudicial error in permitting the Govern-
ment to withhold the identity of its undercover em-
ployee in the face of repeated demands by the accused
for his disclosure. [Emphasis added]. Roviaro, 77 S.Ct.
at 629-630.
Obviously, this Court’s statement that the mere introduc-
tion of a police officer to a defendant, by an informant,
establishes sufficient crucial relevance to mandate disclos-
ure when the defendant claims mistaken identity, is unsup-
ported by any statement in Roviaro. This Court found that
A35
the informant in the instant case was the only witness ‘“‘who
could offer direct testimony except for the police officers.”
But this is not the criterion announced in Roviaro. The
United States Supreme Court required disclosure of an
informant who was the only material witness. The United
States Supreme Court found that Roviaro’s ability to cross-
examine police officers was insufficient since they were
not involved in the drug transaction, i.e., the crime, itself.
What the United States Supreme Court did say is that
when an informant is the only witness to the crime the
probability of his relevance becomes substantial and, when
viewed in light of the totality of circumstances in the
case, may require disclosure.
The appellant was not on trial for promising to sell
heroin to undercover police officers or for discussing the
possibility of such a sale with them, the appellant was on
trial for selling a controlled substance. If the informant is
unable to testify as to the elements of that crime his rele-
vance is wholly insufficient to mandate disclosure. Ap-
parently, this Court does not believe the foregoing state-
ment to be a correct summary of the law. However, that
this Court is wrong, and not the respondent, is augured by
the fact that the respondent in its brief, and the Dissent
list innumerable cases supporting their position while the
Majority relies on a single Missouri Court of Appeals de-
cision.
In discussing Roviaro’s need for disclosure the United
States Supreme Court had to engage in a determination of
“(t]he materiality of John Doe’s possible testimony ... .”
Roviaro, 77 S.Ct. at 629. The Court concluded that the
informant’s testimony was not only highly relevant but
might be helpful because the informant was the only wit-
mess to the actual crime and because the informant had
stated, when confronted with Roviaro’s presence, that he
A36
did not know Roviaro and had never met him previously.
The informant in Roviaro was the only one who might
have testified favorably to him. Interestingly, this Court
has nothing to say about the respondent’s cite to United
States v. Marshall, 532 F.2d 1279, 1282[3] (9th Cir. 1976),
wherein that Court stated:
However, ‘[m]ere speculation that the informer
might possibly be of some assistance is not sufficient
to overcome the public interest and the protection of
the informer.’ Lannom v. United States, 381 F.2d 858,
861 (9th Cir. 1967). Our decisions have placed the
burden of proof upon the defendant to show the need
for disclosure [citations omitted]....
Here, Marshall made no such showing for dis-
closure of the informers which would outweigh the
government’s interest in protecting them as sources
of information. Marshall merely speculated that dis-
closure would be beneficial to his defense. Such
speculation was not sufficient to require disclosure.
See also, United States v. Soles, 482 F.2d 105 (2nd Cir.
1973); and, United States v. Davis, 487 F.2d 1349 (5th Cir.
1973). In United States v. Skeens, 449 F.2d 1066 (D.C.Cir.
1971). Skeens was convicted of two counts of assault
with a dangerous weapon and one count of robbery. Skeens
contended that he was entitled to the name of the Goverr-
ment’s informant under the rule announced by the United
States Supreme Court in Roviaro. The Court of Appeals
found that the record showed only that the informant con-
tacted the police some three weeks after the crime and
told them of the source and whereabouts of the shotgun
involved in the robbery and an alleged conspiracy to mur-
der the Government’s principal witness. The Federal
Court of Appeals further found that the record was other-
wise silent as to the participation of the informant in the
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A37
offense itself. It is of the utmost importance to note that
in the instant case the record is equally silent as to the
participation of the ‘‘unidentified individual” in the actual
transaction involving Officer Dobbins and the seiler of the
heroin. The Court of Appeals in Skeens noted that the
Government presented its case without mention of the
informant, and stated:
We are thus not, as in Roviaro, dealing with one
with whom the accused was charged to have been
dealing in the commission of the offense. Unlike
Roviaro, nothing in this record establishes that the in-
formant was a participant, an eyewitness, or a person
who was otherwise in a position to give direct testi-
mony concerning the crime. None of the criteria of
Roviaro are present. [Citation omitted]. In sum, all
the evidence discloses is that ‘the informer was an
informer and nothing more.’ [Citation omitted]. Id.
at 1070.
The appellant’s attorney requested the identity of the
informant alleging, in conclusory terms only, that he was
a material witness and “some kind of a participant in
this incident.” (Tr. 33). Never does the appellant’s counsel
state that he believes the informant is in possession of pos-
sibly beneficial testimony. In fact, it is evident that the
appellant’s counsel was quite aware that the informant
had no beneficial testimony to offer.
The instant case was instituted by the filing of an in-
dictment against the appellant on March 16, 1976 (Tr. 1).
On January 5, 1977, trial of the appellant began (Tr. 3).
On January 6, 1977, after the state had presented all of its
evidence, and during the appellant’s case in chief, his mo-
tion for a mistrial was granted (Tr. 4). At the beginning
of the subsequent trial held on April 11, 1977, the trial
court asked the appellant’s attorney if he needed anything
A38
further, by way of information, from the state (Tr. 12).
In responding to that question the appellant’s attorney
stated, in material part, as follows:
... Having tried this case before, some three times
prior to that, the evidence will be the same as it was
the past, and I don’t have, I haven’t been made aware
of any new evidence they have found or any new wit-
nesses they claim they are now going to use in this
case..... (Tr. 12).
Additionally, and equally crucial, is the fact that the
prosecuting attorney wanted to introduce into evidence the
fact that on October 18, 1976, the appellant admitted that
on July 23, 1975, “he sold what he thought was powdered
substance to undercover agents ... .” although “he said
that [it was] a rip off... .” (Tr. 217). Although the ap-
pellant attacked the admissibility of this evidence, and it
was excluded, the attacks were at no time based upon its
reliability or veracity or that the statement made by the
appellant was involuntary, coerced or otherwise illegal.
There can be no question about it, the appellant’s at-
torney injected the disclosure issue into trial in the hope of
getting this case reversed if his client was convicted. This
is exactly what has happened. This Court has determined
to let this case go to trial a fifth time because a clever
lawyer asked for the disclosure of an informant he knew
had nothing beneficial to testify to and therefore did not
even attempt to sustain his burden of establishing the
possibility of beneficial testimony.
In response to the argument that the appellant failed
to show that the testimony of the informant would be
exculpatory, this Court stated:
The Roviaro rule requires disclosure where the in-
formant’s testimony ‘. . . is critical to the issue. . .’
or‘... highly relevant to the issue....’
i
A39
This Court’s non-sequitur answer does not meet the re-
spondent’s argument. Roviaro established not only that
an informant’s testimony must be highly relevant but that
in addition thereto, there must be come possibility of its be-
ing exculpatory. What is the sense of disclosing the iden-
tity of an informant, even if he has highly relevant testi-
mony, if there is not the slightest chance it will be excul-
patory, and the defendant knows that. What is the justice
and fairness in ordering a fifth trial, disclosing the in-
formant’s identity, and having the appellant’s attorney
throw that information in the garbage full well realizing its
worthlessness.
The Dissent was correct it concluded that the iden-
tity of an informant need not be disclosed when no show-
ing is made that his testimony would be other than cumula-
tive or repetitive of the State’s evidence. However, quite
unlike the majority opinion, the Dissent’s statement of the
applicable rule is buttressed by innumerable case citation.
The Dissent noted that ten years after Roviaro the United
States Supreme Court reaffirmed that case in McCray v.
Illinois, 386 U.S. 300 (1967) wherein the Court stated not
only that Roviaro should not be read broadly but that a
most important consideration before disclosure would be
required was “the possible significance of the informer’s tes-
timony.” In United States v. Estrella, 567 F.2d 1151 (1st
Cir. 1977), the Court concluded that the identity of an in-
formant need not be disclosed where his participation did
not amount to more than merely arranging a sale between
undercover police and the defendant. See also, United
States v. Alonzo, 571 F.2d 1384 (5th Cir. 1978), cert. denied,
99 S.Ct. 147 (1978); United States v. Morris, 568 F.2d 396
(5th Cir. 1978); United States v. McGruder, 514 F.2d 1288
(5th Cir. 1975), cert. denied, 423 U.S. 1057 (1976); United
States v. D’Amato, 493 F.2d 359 (2nd Cir. 1974), cert.
denied, 419 U.S. 826 (1974). In State v. Milligan, 71 NJ.
A40
373, 365 A.2d 914 (1976) the New Jersey Supreme Court in
a case virtually identical factually to the instant one con-
cluded that an informant’s identity need not be disclosed
because his role was minor and the signifance of his pos-
sible testimony a matter of conjecture. Similarly, the
Colorado Supreme Court in People v. Marquez, 190 Colo.
255, 546 P.2d 482 (banc 1976) ruled against disclosure in a
case involving an anonymous informant who arranged a
meeting between an undercover officer and a seller of
heroin. The informant and the officer went to the seller’s
house where an informant introduced him to the officer.
Next, the informant asked the seller whether he had the
heroin. The seller replied affirmatively and handed a red
balloon filled with heroin to the informant who in turn
handed it to the officer who paid for the drug. On those
facts, the Colorado Supreme Court upheld the ruling of
the trial court denying disclosure. Clearly, the informant’s
participation in the instant case was far more minimal
compared to that of the informer in the Marquez. See also,
State v. Sheffey, 243 N.W.2d 555 (Iowa 1976).
Dispositively, this Court’s Opinion cites no cases
countering the well-established law that mere speculation
on a defendant’s part that the testimony of a confidential
informant will be helpful is, of itself, not enough to require
disclosure. In re United States, 565 F.2d 19 (2nd Cir. 1977).
cert. denied, sub nomine, Bell v. Socialist Workers Party,
98 S.Ct. 3082 (1978); United States v. Marshall, 532 F.2d
1279 (9th Cir. 1976); United States v. Alverez, 472 F.2d 111
(9th Cir. 1973), cert. denied, 412 U.S. 921 (1973); United
States v. Skeen, 449 F.2d 1066 (D.C.Cir. 1971).
There is no question but that the appellant’s counsel
was sandbagging. By his own omission he had tried this
case three times previously. He certainly knew the facts
of the case inside and out and the fact that he failed to
A4l
sustain his burden and establish that the informant had
testimony beneficial to the appellant is more than enough
to support Judge Stussie’s decision not to require dis-
closure. However, that fact more dispositive of this Court’s
misinterpretation and misapplication of Roviaro is that it
simply cites no cases directly in support of its position,
while the respondent and the Dissent cited innumerable
cases reflecting and expounding upon the nature and mean-
ing of Roviaro. Those cases support Judge Stussie’s ruling.
Next, this Court concluded that the State’s need to
prevent disclosure was weak. That conclusion is founded
solely upon the fact that the informant, although active for
eight months after the criminal transaction, was not active
at the time of the appellant’s trial. This conclusion misses
the point. In Roviaro the United States Supreme Court
stated the policy behind denying disclosure of an infor-
mant’s identity:
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 further-
ance and protection of the public interest in effective
law enforcement. The privilege recognizes the obli-
gation 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. Roviaro v. United States,
supra, 353 U.S. at 59.
The United States Supreme Court said nothing about
whether an informant was still active or not. The question
is whether the disclosure of the informant’s identity, in
this situation, would deter that informant from once again
A42
fulfilling his obligation to disclose information about cri-
minal activity. The United States Supreme Court says
nothing about an informant continuing actively in such a
role. Rather, the issue is whether disclosure of his identity
will deter him from fulfilling his obligation to report law-
lessness in the future and whether that disclosure will deter
the community in general from fulfilling its obligation to
report crimes to the government. The community’s needs
cannot be outweighed by the needs of a defendant whica
are speculative or, in reality, nonexistent. That is the rea-
son a defendant must establish, with specificity, that the
testimony of an informant whose disclosure he requests
will benefit him; otherwise, the community suffers at the
hands of an obviously guilty defendant who has nothing
to gain and a system to destroy.
The travesty here is that this Court has determined
that the appellant will not be a recipient of fundamental
fairness unless he is tried for a fifth time.
This Court’s ruling will effectively limit prosecutions
and convictions in the controlled substances area. Ac-
cording to this Court all a defendant has to do is make a
motion requesting the disclosure of an informant, without
establishing anything in regard to a specified need or
probable beneficial testimony of that informant. If that
informant is not presently active the State’s interest will be
deemed so minimal as to require a disclosure and an obvious
continuance in the case while the defendant seeks the in-
dividual and determines whether to call him as a wit-
ness. The end result will be that we will have no infor-
mants; the obvious consequence being that prosecutions
and convictions of those engaged in drug trafficking will
dramatically decrease. This result is not what the United
States Supreme Court intended in Roviaro.
This assertion is not speculation. The undersigned has
been in contact with Craig Ellis, an Assistant Prosecuting
A43
Attorney for St. Louis County. Mr. Ellis informed the
undersigned that he recently dropped charges in State v.
Paul Kevin Umphress, No. 420381, St. Louis County Circuit
Court, Division 3. Umphress was charged with the sale
of a Schedule One Controlled Substance. Umphress re-
quested disclosure of an informant’s identity, even though
the informant played a minor role in the case and Umphress
at no time stated he would rely on the alibi of mistaken
identity. Mr. Ellis consulted with police officials and deter-
mined that under no circumstances could the informant’s
name be disclosed. The charges against Umphress were
dismissed because it is the feeling of prosecutors and
judges alike, in St. Louis, that Wandix ennunciates a per se
rule of disclosure. Since it is deemed that identity is al-
ways an issue in drug cases, and Wandiz requires disclosure
of an informant who merely arranges a drug sale, St. Louis
judges are now requiring disclosure in virtually all cases in
which it is requested. Since the Wandix Opinion came
down two weeks ago all defense attorneys are filing dis-
closure requests knowing full well that Wandix will.
require disclosure if they claim mistaken identity and the
informant merely introduced undercover police to their
clients. The end result is that a large number of pending
prosecutions in St. Louis will be dismissed.
Unless this Court recognizes that an informant’s dis-
closure is mandated in only specified instances such as in
Roviaro, then drug peddling will flourish. Although this
is the result of Wandizx it was not the intent of Roviaro.
As stated by the United States Supreme Court in McCray
v. Illinois, supra:
. . we have taken occasion to point out that a rule
virtually prohibiting the use of informers would ‘se-
verely hamper the government’ in enforcement of the
narcotics laws. [Citation omitted]. Id., 386 U.S. at
312, 87 S.Ct. at 1063.
A44
This Court’s unwarranted expansion of Roviaro has estab-
lished a rule which this day is virtually prohibiting the
use of informers. This liberal expansion of Roviaro is
not only dangerous but unconstitutional. Oregon v. Hass,
420 U.S. 714, 719, 95 S.Ct. 1215, 1219 [1, 2] (1975).
EN FIN, in light of all the foregoing, the respondet’s
brief and the Dissent, it is respectfully request that this
Court reconsider its Opinion and affirm the conviction be-
low.
Respectfully submitted,
John Ashcroft
Attorney General
/s/ Michael H. Finkelstein
Michael H. Finkelstein
Assistant Attorney General
Supreme Court Building
Box 899
Jefferson City, Missouri 65102
(314) 751-3321
Attorneys for Respondent
CERTIFICATE OF SERVICE:
I hereby certify that a true and correct copy of the
foregoing was mailed postage prepaid, this 2nd of Novem-
ber, 1979, to:
James J. Knappenberger
Attorney at Law
225 South Meramec Avenue
Suite 324 T
Clayton, Missouri 63105
/s/ Michael H. Finkelstein
Michael H. Finkelstein
en eee ee
TB a pm 2 mets
A45
APPENDIX D
SUPREME COURT OF MISSOURI
EN BANC
No. 61201
STATE OF MISSOURI,
Respondent,
vs.
VINCENT WANDIX,
Appellant.
(Filed November 14, 1979)
PER CURIAM:
In asserting the principal opinion “would effectively
destroy the privilege of the confidential informer in drug
cases” and “can only lead to stultification of our law en-
forcement system by effectively removing one of the state’s
most valuable enforcement tools, the confidential infor-
mant,” the dissent misinterprets the language of the princi-
pal opinion and overstates its intended effect.
The principal opinion does not presume to declare new
law as to the informer’s privilege. It represents at most an
application of the Roviaro balancing test, adopted by this
Court in State v. Edwards, 317 S.W.2d 441 (Mo. banc
1958), to a rather unique fact situation. The informer’s
privilege remains intact as reflecting the strong public
policy of this state, and should be honored except in those
cases where there exists “the possibility of any real and
substantial prejudice to the defendant, in the bona fide
preparation of his case, from a failure to divulge the name.”
A46
Edwards, 317 S.W.2d at 449 (Eager, J., concurring and
speaking for a plurality).
The state’s motion for rehearing is overruled.
Bardgett, C.J., Donnelly, Seiler and Welliver, JJ., concur;
Rendlen, Morgan, JJ., and Finch, Sr.J., dissent.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.