No. 88-524 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-VSANNETTE BABELLA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County 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; Craig Friedenauer, 

Deputy County Atty., Missoula, Montana 

For Respondent: 

J. Dirk Beccari, Public Defender, iss sou la, Montana 

i .I 

Filed: 4 

Submitted on Briefs: Jan. 26, 1989 

Decided: May 9, 1989 

, 

- -, Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of 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 of drugs to Terry LaRoque. 

When the officers executed the search warrant at the 

home of Terry LaRouqe, Ms. Babella was found in bed with him. 

Drugs, various items of drug paraphernalia, and a large 

amount of cash, were found in the bedroom and in pants belonging to Ms. Babella. She was 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 defendant moved 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 

defendant dismissed. 

A governmental entity may claim the privilege to refuse 

to disclose the identity of its confidential informants. 

This privilege is not absolute but is subject to a balancing 

test enunciated in Roviaro v. 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. The problem is one that 

calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a 

proper balance renders nondisclosure erroneous must 

depend on the particular circumstances of each 

case, taking into consideration the crime charged, 

the possible defenses, the possible significance of 

the informer's testimony, and other relevant 

factors. 

353 U.S. at 62. 

Montana previously recognized this test in State ex rel. 

Offerdahl v. Dist. Ct. of Eighth Judicial Dist. (1971), 156 

Mont. 432, 481 P.2d 338. 

This privilege was codified in Montana in 1977 by the 

enactment of Rule 502 M.R.Evid, which states: 

(a) Rule of privilege. The United States or 

a state or subdivision thereof has a privilege to 

refuse to disclose the identity of a person who has 

furnished information relating to or assisting in 

an investigation of 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) Exceptions and limitations. 

(1) Voluntary disclosure; informer a witness. 

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 a witness for the public entity. 

(2) Testimony on relevant issue. If it 

appears in the case that an informer may be able to 

give testimony relevant to any issue in a criminal 

case or to a fair determination of a material 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 should be 

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 interest of the public 

entity against a party's right to prepare his defense and to 

confront and examine his accuser." 

In 1985, the Montana Legislature enacted § 46-15-324(3), 

MCA, which also addresses this privilege. That statute 

provides : 

Disclosure of the existence of an informant or 

of the identity of an informant who will not be 

called to testify is not required if: 

(a) disclosure would result in substantial 

risk to the informant or to his operational effectiveness; and 

(b) the failure to disclose will 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's rights. 

In the present case, the record is bare regarding the 

defendant's basis for making the motion for disclosure of 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 whatsoever which 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 that Ms. 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 informants could result in 

a risk of harm to them? 

A. Yes, sir, I do. 

Q. What is the basis for your feeling? 

A. Our investigation has revealed that individuals connected with LaRoque in other states are 

in the habit of using violence for 

enforcement. 

In particular, one incident in Pasco, 

Washington, resulted in the death of four 

people by machine gun. These people have been 

directly tied into Mr. 1,aRoque by 

investigatj-on. 
Officer Wickes also testified to finding nine guns in the 

residence of Mr. LaRoque and Ms. Babella. 

On cross-examination, defense counsel asked if Ms. 

Babella herself had 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 of privilege. 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. Babella made absolutely no 

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 statement made by defense counsel constitutes the 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 (citing United States v. Kerris (11th Cir. 

1984), 748 F.2d 610, 614). As we stated in State v. Sykes 

(1983), 663 P.2d. 691, 695, 40 St.Rep. 690, 693, "allowing 
such a routine challenge as that presented by defendant would 

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 first disclose 

the relevance of the informants' testimony. She argues that 

only then can she know if her constitutional rights have been 

violated, and only then can the balancing test be 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 for disclosure, and this need must 

be one which overrides the government's interest. Mere 

speculation will not suffice. United States v. Prueitt (9th 

Cir. 1976), 540 F.2d 995, 1003-04. 

The District Court's order is vacated and this case is 

remanded for further proceedings. 

We Concur: 
Mr. Justice John C. Sheehy, dissenting: 

I dissent on two grounds, (1) the majority analysis of S 

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 

nondisclosure of 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 first prong but fails utterly 

to examine the infringement of Babella's constitutional 

rights, including the right to meet her accusers 

face-to-face, and the right to prepare 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 spoke of police activity to "some Mexicans 

in town" who told her "they would handle the problem." 

~othing in those statements reflects any danger to hidden 

witnesses or informers, unless we 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 State has. ---\ 

I concur in the dissent of M stice John C.