No. 88-524
INTHE SUPREME COURT OF THE STATE OF MONTANA
1989

STATE OF MONTANA,
Plaintiff and Appellant,-VSANNETTE BABELLA,
Defendant and Respondent.

APPEAL FROM: DistrictCourt of theFourth JudicialDistrict, In and for theCounty of Missoula, The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Marc Racicot, Attorney General, Helena, Montana Robert F.W. Smith, Asst. Atty. General, Helena Robert L. Deschamps, County Attorney; CraigFriedenauer, Deputy County Atty., Missoula, Montana
For Respondent:
J. Dirk Beccari, PublicDefender, iss sou la, Montana

i.I Filed: 4 Submitted on Briefs: Jan. 26, 1989
Decided: May 9, 1989

,

--, ClerkMr. Justice Fred J. Weber delivered the Opinionof the Court.

The District Court for the Fourth Judicial District, Missoula County, dismissed the charges against this defendant. The State appeals. We reverse. The issue is: Did the District Court err in granting defendant's motion which requested disclosure of the identity of confidential informants? On October 3, 1987,Missoula law enforcement obtained a search warrant to search the home of Terry LaRoque. The application for the warrant was lengthy and contained information from several sources including Crimestoppers reports, anonymous phone calls, a participant in the drug sales, and information from confidential informants. The application recited specific instances in which reports given by informants and callers had been verified by law enforcement. Information obtained from the informants and other sources linked the sale ofdrugs to Terry LaRoque. When the officers executed the search warrant at the home of Terry LaRouqe,Ms. Babellawas found inbed with him. Drugs, various items of drug paraphernalia, and a large amount of cash, were found in the bedroom and in pants belonging toMs. Babella. Shewas subsequently arrested. On October 19, 1987, the State filed an information charging Ms. Babella with the offense of possession of dangerous drugs with the intent to sell, in violation of 5 45-9-103(1), MCA. Ms. Babella plead not guilty on November 13, 1987. Later, the defendantmoved for the disclosure of the State's confidential informants, and a hearing on this motion was held on June 17, 1988. At that hearing the State presented one witness, police officer Bill Wicks. He testified to facts which indicated that disclosure of identity

### would produce a substantial risk of harm to the informants. The defendant produced no testimony. The court ordered both parties to brief the issue, and subsequently ordered the State to disclose the identity of the informants. When the State refused, the court ordered the charges against the defendantdismissed. A 

### governmental entity may claim theprivilege to refuse to disclose the identity of its confidential informants. This privilege isnot absolutebut is subject to a balancing test enunciated in Roviarov. United States (1957),353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. In Roviaro the Court stated:
We believe that no fixed rule with respect to disclosure is justifiable. Theproblem is one that calls forbalancing thepublic interest inprotecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, thepossible defenses,thepossible significance of the informer's testimony, and other relevant factors.
353U.S. at 62. Montanapreviously recognized this test in State ex rel. Offerdahl v. Dist. Ct. of Eighth Judicial Dist. (1971), 156 Mont. 432,481P.2d 338. This privilege was codified in Montana in 1977 by the enactment ofRule 502M.R.Evid, which states:
(a) Rule of privilege. The United States or a state or subdivision thereof has a privilege to refuse todisclose the identityof apersonwho has furnished information relating to or assisting in an investigationof a possible violation of a law. (b) Who may claim the privilege. The privilege may be claimed by an appropriate representa-

### tive of the public entity to which the information was furnished. (c) Exceptionsand limitations. (1) Voluntary disclosure; informer awitness. No privilege exists under this rule if the identity of the informer or his interest in the subject matter of his communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action, or if the informer appears as awitness for thepublic entity. (2) 

### Testimony on relevant issue. If it appears in the case that an informermay be able to give testimony relevant to any issue in a criminal case or to a fair determination of amaterial issue on the merits in a 

### civil case to which a public entity is a party, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show facts relevant to determining whether the informer can, in fact, supply that testimony. If 

### the Court finds that the informer shouldbe required to give the testimony, and the public entity elects not to disclose his identity, the court on motion of the defendant in a criminal case shall dismiss the charges to which the testimony would relate, and the court may do so on its own motion. In civil cases, the court may make any order that justice requires. The Commission Comments regarding this rule state, "The Commission believes this balances the interestof the public entity against a party's right to prepare his defense and to confrontand examinehis accuser." In 1985,

### the Montana Legislatureenacted § 

### 46-15-324(3), MCA, which also addresses this privilege. That statute provides:

### Disclosureof the existence of an informant or of the identity of an informant who will not be called to testify isnot required if: (a) disclosure would result in substantial risk to the informant or to his operational effectiveness;and (b) the failure to disclosewill not infringe the constitutional rights

### of the accused.These rules reflect the policy of balancing the public's interest in protecting the flow of information to law enforcement, against the defendant'srights. In the present case, the record is bare regarding the defendant'sbasis for making themotion fordisclosureof the informants. Likewise, the order by the District Court gives
no reason supporting its decision to order disclosure. In considering this issue on appeal,we have only the transcript from the hearing for our guidance. At the hearing, the defendant made no showing whatsoeverwhich would establish a need for information about the confidential informants. We
are therefore unable to determine why the court ordered disclosure. In the present case the State contends that it met its burden by showing that disclosure would subject the informants to a substantial risk of harm. At the hearing on the motion to disclose the identity of the informants, Officer Wicks stated thatMs. Babella's boyfriend,Terry LaRoque, was connected with individuals in other states who were "in the habit of using violence for enforcement." The excerpt from the transcript states:
Q. Do you have any feeling as to whether or not disclosure of these informantscould result in a risk ofharm to them? A. Yes, sir, Ido. Q. What is thebasis foryour feeling? A. Our investigation has revealed that individuals connected with LaRoque in other statesare in the habit of using violence for enforcement. In particular, one incident in Pasco, Washington, resulted in the death of four people bymachine gun. Thesepeople have been directly tied into Mr. 1,aRoque by investigatj-on.

### Officer Wickes also testified to finding nine guns in the residenceofMr. LaRoque and Ms. Babella. On cross-examination, defense counsel asked if Ms. Babellaherselfhad made threats against the informants. The officer said, "Yes," and stated that after a discussion between Ms. Babella and law enforcement, Ms. Babella had reported the police activity to "some Mexicans in town" who told her in so many words that "they would handle the problem.

### " The 

### testimony by Officer Wicks established that disclosure would result in substantial risk to the informants,and is clearly sufficient to invoke the privilege pursuant to 5 

### 46-15-324(3)(a),MCA. Ms. Babella contends that in her case two exceptions may apply to this rule ofprivilege. She urges that nondisclosure may violate her constitutional rights pursuant 

### to S 

### 46-15-324(3)(b)

## , MCA, or that the informant may be able to give "testimony relevant to any issue" pursuant to Rule 502(c)(2), M.R.Evid. However,Ms. Babellamade absolutelyno showing which would invoke either exception. After Officer Wicks testified that Ms. Babella had reported the police activity to "some Mexicans in town," defense counsel moved for "immediate disclosure of that information,

### " stating, "It is obviously pertinent to Ms. Babella's case." This statementmade by defense counsel constitutesthe defendant's only attempt to show a need for disclosure. The information referred to did not even relate to her alleged offense. "Mere conjecture or supposition about the possible relevancy of the informant's testimony is insufficient to warrant disclosure." State 

### v. McLeod (1987), 740 P.2d 672, 675, 44 St.Rep. 1251, 1255 (citingUnited Statesv. Kerris (11thCir. 1984), 748 F.2d 610, 614). As we stated in State v. Sykes (1983), 663 P.2d. 

### 691, 695, 40 St.Rep. 690, 693, "allowingsuch a routine challengeas that presentedby defendantwould hamstring the effective operation of law enforcement agencies." Whereas the State met its burden, there was a total failure on the part of the defendant to demonstrate any need which would compel disclosure. The general assertion of a need for disclosure was wholly inadequate to satisfy the defendant's burden under the Roviaro test, or under either relevant statute. Ms. Babella contends that the State must firstdisclose the relevance of the informants' testimony. She argues that only then can she know if her constitutionalrightshave been violated,and only then can the balancing testbe made. This misconstrues the balancing test, and the requirements under the statutes. In this balancing test the burden is on the defendant to show the need fordisclosure,and thisneed must be one which overrides the government's interest. Mere speculation will not suffice. United Statesv. Prueitt (9th Cir. 1976), 540 F.2d 995, 1003-04. The District Court's order is vacated and this case is remanded for furtherproceedings.

We Concur:Mr. Justice John 

### C. Sheehy,dissenting:



### Idissent on two grounds, (1)themajority analysis ofS 46-15-324(3), MCA, is incomplete, and (2) the testimony of the police officer regarding danger to the informants is vague and imprecise, as it relates to the defendant Annette Babella. First the statute. It has two subsections (a)and (b)
as set out in the majority opinion. The subsections are connected with the conjunction "and." To gain the nondisclosureof information,because of the conjunction,the State must show (1) substantial risk, and (2) the constitutional rights of the accused are not infringed. The majority opinion discusses the firstprong but failsutterly to examine the infringement of Babella's constitutional rights, including the right to meet her accusers face-to-face,and the right toprepare a defense. Second, the purported risk to the informers. The testimony of Officer Wicks speaks vaguely and arcanely of a "habit" based on one incident unconnected to Babella. He testified that she spokeofpolice activity to "some Mexicans in town" who told her "they would handle the problem." ~othingin those statements reflects any danger to hidden witnesses or informers, unlesswe assume that "~exicans" as a class are dangerous, and that in "handling" the problem, the Mexicans meant violence. At most, the supposed danger is speculation, if the testimony is all the Statehas.

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I concur in the dissent of M stice John C.