NO. 87-428 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJAMES D. COATES, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Bruce L. Hussey, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Clay R. Smith, Asst. Atty. General, Helena 

Robert L. Deschamps, 111, County Attorney, Missoula, 

Montana 

Submitted on Briefs: July 14, 1988 

Decided: August 22, 1988 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Defendant James D. Coates appeals his conviction of 

four counts of felony theft in Missoula County District 

Court. We affirm. 

Three break-ins occurred in Missoula, Montana in early 

September of 1986 which resulted in the theft of various 

power tools and firearms. On September 10, 1986, the Great 

Falls Police Department received a telephone call from an 

individual who stated that James D. Coates (Coates) was 

attempting to sell him guns and power tools at the Cowboy 

Bar. The caller identified Coates' vehicle as a green 

Ranchero or El Camino with Missoula County license plates and 

several large cardboard boxes in the rear. 

Based on the information received from the informant, 

Great Falls police officers proceeded to the Cowboy Bar where 

they found a vehicle matching the description given to them. 

A registration check revealed that the vehicle was registered 

to Coates. The officers observed two individuals exit the 

bar at different times and inspect the boxes in Coates' 

vehicle. One of the individuals, Patricia Werring (Werring) , 

later drove away with a box in her vehicle that was similar 

to the boxes in Coates' vehicle. 

The officers followed and stopped Werring's vehicle. 

Werring indicated that the box in her vehicle belonged to 

Coates and the officers confiscated the box with Werring's 

permission. The box contained a miter box saw. Werring was 

released and the officers returned to the Cowboy Bar to 

observe Coates' vehicle. Coates, Richard Horton (Horton), 

Rebecca Wagner (Wagner), and Bruce Werring soon exited the 

bar. Coates, Horton, and Wagner, all who had open containers 

of alcoholic beverages in their hands when they left the bar, 

departed in Coates' vehicle. 
The officers stopped Coates' vehicle and inquired about 

the contents of the boxes. Coates claimed ownership of the 

contents of the boxes in his vehicle and the contents of the 

box confiscated from Werring. Coates and his passengers were 

arrested for violation of the open container law and Coates' 

vehicle was impounded. The next day, the Great Falls police 

department obtained a search warrant and searched Coates' 

vehicle. The contents of the boxes were identified as power 

tools and firearms stolen in the three Missoula break-ins. 

Coates was charged by information on November 7, 1986, 

with four counts of felony theft pursuant to S- 45-6-301, MCA. 

Prior to trial, Coates moved for disclosure of the identity 

of the State's confidential informant. The District Court 

denied Coates' motion on April 21, 1987. A jury trial 

commenced on April 28, 1987, and a guilty verdict was 

returned on May 1, 1987. Coates was sentenced on June 15, 

1987 to ten years imprisonment at the Montana State Prison on 

each count, with three years suspended on each of the four 

concurrent sentences. Coates appeals and raises the 

following issue: Did the District Court abuse its discretion 

in denying the motion for disclosure of the identity of the 

confidential informant whose report led to the surveillance 

of Coates' vehicle? 

Coates seeks to compel disclosure of the informant's 

identity through Rule 502(c)(2), M.R.Evid. Rule 502 provides 

in pertinent part as follows: 

(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. 

(c) Exceptions and limitations. 
(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. 

The Montana Supreme Court Commission on Evidence comments 

indicate that Rule 502 adopted the following balancing test 

as expressed in Roviaro v. United States (1957), 353 U.S. 53, 

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. 

Roviaro, 353 U.S. at 62, 77 S.Ct. at 628-29, 1 L.Ed.2d at 

646. Section 46-15-324(3), MCA, is also relevant to the 

issue on appeal and provides as follows: 

(3) Disclosure 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. 
Coates contends that the confidential informant may be 

able to give testimony which is relevant to whether there was 

probable cause for his arrest. The State points out that 

Coates was arrested for an open container violation and that 

the informant's information was not used as a basis for that 

arrest. The State also contends that the informant's 

conversation only supplied the impetus for placing Coates' 

vehicle under surveillance. For that reason, the State did 

not rely on the informant's information at trial and avoided 

any reference to the informant or to his or her conversation 

with law enforcement officers. Finally, the State asserts 

that the informant's testimony would have been cumul-ative to 

that of other witnesses in the trial. 

The District Court noted that Coates' subsequent arrest 

for felony theft was predicated on the arresting officers' 

independent investigation. That investigation revealed that 

Coates had attempted to sell certain items to the informant 

and others, that Coates claimed ownership of the items, and 

that the items were stolen. Consequently, it is clear under 

the undisputed facts of this case that the informant's 

information was not used as a basis for probable cause to 

arrest Coates for felony theft. 

Coates cites to State v. Chapman (Mont. 1984), 679 P.2d 

1210, 41 St.Rep. 550, and Gilmore v. United States (5th Cir. 

1958), 256 F.2d 565, to support his argument that the 

informant's identity should have been revealed in this case. 

However these two cases are distinguishable from the instant 

case in that the informants in Chapman and Gilmore were 

active participants in the alleged crime and had done more 

than just inform or supply information. 

Coates contends that the informant's testimony would be 

relevant to his defense but fails to support that contention 

with anything more than conjecture or supposition. State v. 

McLeod (Mont. 1987), 740 P.2d 672, 675, 44 St.Rep. 1251, 
1255, (citing United States v. Kerris (11th ~ir. 1984), 748 

F.2d 610, 614, which states that mere conjecture or 

supposition is insufficient to warrant disclosure). There is 

no evidence that disclosure in this case outweighs "the 

public interest in protecting the flow of information" or 

that the informant's testimony would be relevant to any issue 

in this case. Roviaro, 353 U.S. at 62, 77 S.Ct. at 628-29, 1 

L.Ed.2d at 646; State v. Sykes (Mont. 1983), 663 P.2d 691, 

694, 40 St.Rep. 690, 692; Rule 502, M.R.Evid. Coates has 

failed to substantiate his claim that his constitutional 

rights have been infringed by nondisclosure or that the 

informant would be exposed to no risk upon disclosure. 

Section 46-15-324(3) (a), (b), MCA; McLeod, 740 P.2d at 675. 

Accordingly, we hold that the District Court did not err by 

denying the motion for di.sclosure of informant's identi-ty. 

Affirmed. ./ 

avY\ 

Justice f 

We concur: