Appeal from the Circuit Court of Cook County; the Hon. Michael
P. Toomin, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This is an appeal by the State, pursuant to Supreme Court Rule 604(a)(1) (87 Ill.2d R. 604(a)(1)), from orders (a) requiring it to disclose the identity of an informant, and (b) dismissing defendant's indictment following its refusal to do so.
Prior to trial on his indictment for delivery of a controlled substance (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401), defendant filed a motion requesting production of or information concerning a police informant involved in the case together with an affidavit which is summarized as follows.
At about 2 a.m. on May 20, 1984, defendant noticed a large, well-built black man on a bicycle circling the gas station where he worked in Palatine, Illinois. He had never seen the man before and was "somewhat intimidated" by his size and fearful as he watched him circle the gas station, but he could not lock the door because the key had been misplaced earlier that night. The man then entered the building and, after purchasing some groceries, introduced himself as "Vinnie" and initiated a conversation about bicycle riding and body building. When defendant commented on Vinnie's physical fitness, Vinnie suggested they get together to "work out" some night and they then exchanged telephone numbers. Just before leaving, Vinnie asked whether he had any marijuana or cocaine. When defendant replied negatively Vinnie asked whether he could obtain any, explaining that he had been dealing in drugs but had lost his previous source and badly needed money. He was particularly interested in securing an "8-ball" which, he explained, was one-eighth ounce of cocaine because he knew several potential purchasers in Chicago and asked defendant to try to get some and to call him. Although he did not intend to honor either request, defendant responded "okay," and Vinnie then left.
Approximately 10 days later, Vinnie returned to the gas station and asked defendant why he had not called him, stating that he would be seeing some friends at the beach on Saturday and wanted an "8-ball." In contrast to their first meeting, on this second occasion Vinnie was in a hurry and interested only in finding out whether defendant could supply him with some cocaine. Assuming that because Vinnie lived in Chicago and did not come by often, he eventually would give up, defendant told him that he would inquire about getting some at a party he planned to attend on Friday night. It was his intention only to ask whether anyone there had any and, if so, to give his or her telephone number to Vinnie, but when he saw people at the party "doing lines," he asked if he could have some. He was given what he thought was one-fourth gram but, actually, it was only a "line" which, he learned, was a smaller amount. He planned to give it to Vinnie the next day and to explain that it was all that he could obtain, but when Vinnie did not come to the gas station as he said he would, defendant was relieved, thinking that perhaps Vinnie had "given up" on him. A few days later, however, Vinnie called him at home to ask if he had found any cocaine. Responding that he had, Vinnie told defendant to meet him at the gas station, but when he arrived, Vinnie refused the amount he had acquired at the party, saying that he needed more and that he wanted defendant to meet his "partner." When Vinnie called again, on June 11, defendant informed him that he did not have any more cocaine, but Vinnie nevertheless wanted to meet at 2 p.m. Defendant agreed to do so but he remained at home instead, hoping that when he failed to appear at the scheduled time, Vinnie would leave and finally "give up." However, at 2:15, Vinnie called again, told defendant that he and his "partner" from Chicago were waiting and that he should "hurry up and get up here." When defendant arrived, Vinnie introduced him to his partner, "John," an older man who was about 6 feet 2 inches tall, 190 pounds, bearded and dressed in dirty clothes. John seemed to be "in control" and after taking the "line" of cocaine that Vinnie had previously refused, asked him to get two ounces more before the weekend, stating that he needed it quickly because some of his customers had already paid him for it and were becoming very angry. On June 13, John called defendant at least six times asking for the cocaine. Tiring of these calls, defendant, at some point that afternoon, called the number Vinnie had given him to ask Vinnie to tell John to leave him alone, but an older woman answered and told him that Vinnie was "in some kind of trouble" and was not there. Frightened, defendant told John, when he called back, that he was not a drug dealer, did not want to become involved and regretted having tried to do a favor for Vinnie, but when John persisted, saying that he badly needed the cocaine and that he knew defendant could get it for him if he "tried hard enough" defendant became even more frightened and finally agreed to meet John on June 18, at which time he was arrested and charged with the illegal sale of more than 30 grams of cocaine. At the March 25 hearing on defendant's motion for disclosure of Vinnie's identity, defendant, through his counsel, admitted delivery of the contraband but claimed that he had been entrapped.
In granting defendant's motion for disclosure of the information possessed by the State concerning Vinnie, the trial court found, on the basis of defendant's affidavit, that Vinnie "could be very relevant and instrumental in the preparation of [an] entrapment defense" and that defendant should, therefore, have the opportunity to interview him prior to trial for the purpose of preparing that defense. The State initially agreed to provide the information within 10 days, but instead filed a motion for reconsideration of the disclosure order together with a memorandum in support thereof. After a hearing, that motion was denied, whereupon the State advised the court that it would not comply with the order, stating,
"We understand there are sanctions the Court can enter. Whatever, we respectfully decline to to introduce [sic] that informant."
Defendant then moved for dismissal of the indictment, arguing that any other sanction would be meaningless. The trial court agreed, stating to the prosecutor,
"Unless you have some position that you would urge at this point, it seems to me that this defendant is being deprived of his right of confrontation and right to prepare [an] adequate defense[.] [O]f the sanctions that are given in the rules, I am at a lost [sic] to perceive of any that would be appropriate, save dismissal."
When the State offered no alternative to nor argument against dismissal, the trial court dismissed the indictment, and this appeal followed.
The State first contends that the trial court erred in ordering disclosure of Vinnie's identity, arguing generally that defendant failed to demonstrate a need for disclosure sufficient to overcome the strong public-policy considerations underlying the "informer's privilege" set forth in Supreme Court Rule 412(j)(ii), which provides:
"Disclosure of an informant's identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall not be denied hereunder of the identity of witnesses to be produced at a hearing or trial." 87 Ill.2d R. 412(j)(ii).
As correctly asserted by the State, the informant's privilege created by this exception to the general rule of disclosure in criminal cases is founded upon public-policy considerations, which ...