Appeal from the Circuit Court of Macon County; the Hon. John
L. Davis, Judge, presiding.
JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
The major question involved in this appeal is whether the defendant, Frederick Alan Rendfeld, had a right to information concerning whether Bill McCoy, who was shown to have been an accomplice, had assisted law-enforcement officers in securing a search warrant by which evidence constituting the heart of the State's case was obtained. We hold that the informer's privilege was operative and permitted the State to withhold the information sought.
The case commenced on March 8, 1985, when defendant was charged in the circuit court of Macon County with the offense of unlawful possession of cannabis of a weight in excess of 500 grams (Ill. Rev. Stat. 1985, ch. 56 1/2A, par. 704(e)). Subsequently, the defendant was tried by jury and a judgment of conviction was entered on January 28, 1986. The court sentenced defendant to two years' imprisonment and fined him $500. On appeal, defendant asserts that the circuit court erred because: (1) as indicated, the court refused to require the State to inform the defense as to whether Bill McCoy, who had firsthand knowledge of the offense, had assisted the State in obtaining its search warrant; (2) the court refused to allow defendant to show the circumstances surrounding the arrest of McCoy; and (3) the court admitted contraband into evidence over defendant's objection that a proper chain of custody of the evidence had not been established. We affirm.
Decatur police officers Jerry Wagoner and Curtis Johnson and State police agent David McLearin testified at trial for the State describing their arrest of defendant after executing a search warrant on November 6, 1985, at approximately 5 p.m. According to their testimony the following occurred. An automobile driven by defendant was stopped on Route 51 in Decatur. The officers had with them a dog trained to sniff for odors of cannabis. The actions of the dog indicated that the trunk of the vehicle needed to be searched. They discovered the trunk lock was broken, and, therefore, McLearin was required to open the trunk with a screwdriver. Inside the trunk, he found a large, green garbage bag which contained a brown leafy substance. A field test was conducted by use of a Bectin-Dickenson kit, and the substance in the bag tested positive for cannabis. The defendant was then arrested, and defendant and the garbage bag containing the leafy substance were taken to a police station.
Wagoner further testified that, when they arrived at the police station, he interviewed defendant in regard to the cannabis found in the trunk. Wagoner said that defendant indicated the cannabis belonged to him solely and was for his personal use. He further stated that defendant indicated he was by himself when he picked the substance from a field in Ivesdale. Wagoner stated that he then put the cannabis in the detectives' closet on the third floor and locked it. On re-cross-examination, Wagoner was shown his investigation report, which did not refer to a question about whether defendant was alone at the time he picked the cannabis, and he admitted there was no such question in his report.
Decatur police officer Clifford Kretsinger testified that he subsequently tested the substance from the garbage bag and found it to be cannabis. He said he weighed the substance and found it to weigh in excess of 3,000 grams including the stalks. We later discuss the evidence of chain of custody of the garbage bag from the time it was delivered to the police station until Kretsinger tested and weighed the contents.
After the State rested its case, defendant's motion for a directed verdict was denied. Before defendant presented any testimony to the jury, he obtained permission to examine McCoy in chambers. There, McCoy testified that he had gone with defendant to a field near Ivesdale to pick marijuana on two occasions before November 1, 1985. McCoy agreed that this marijuana might have been placed in the trunk of defendant's car. McCoy further testified that he put a bag of marijuana in the trunk of defendant's car on November 6, 1985, after opening the trunk by use of a screwdriver. McCoy was then asked if his residence had been searched by the police, but the court sustained an objection on relevancy grounds. Then, in support of an offer of proof, McCoy testified that his house had been searched. The defense asked McCoy if he assisted the police in obtaining a warrant to search the trunk. The court again sustained an objection by the State.
In sustaining the second objection, the court reasoned that to require the question to be answered even as part of an offer of proof would have required the State to inform the defense as to whether McCoy was an informer and thus would have violated the informer's privilege. The principal issue in the case arose from this ruling.
Upon the objection being sustained, the defendant concluded his in-chambers examination of McCoy and announced that he would not be calling McCoy as a witness. Defendant then testified in his own behalf. He stated that on November 3, 1985, he had driven McCoy to Ivesdale and helped him pick cannabis which was put in a green garbage bag. Defendant stated that the bag was placed in the trunk of his car, and they drove back to Decatur. Defendant further testified that on November 6, 1985, McCoy came to defendant's home, went to defendant's car, opened the trunk with a screwdriver, took out the garbage bag with the purported cannabis in it, brought it into the house and weighed it on the bathroom scales. According to defendant, McCoy then left with the bag. Defendant testified that he assumed that McCoy had taken the bag with him until the bag was later found in defendant's trunk by the law-enforcement officers.
• 1 We consider first the questions of the operation of the informer's privilege, and whether the defendant was entitled to know whether McCoy had assisted the State in obtaining the warrant for the search of defendant's automobile. Supreme Court Rule 412(j)(ii) states:
"Informants. 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).
The informant's privilege created by this exception to the general rule of disclosure in criminal cases is founded upon public policy considerations which are explained in the committee comments of the rule:
"The value of informants to effective law enforcement is so highly regarded that encouragement of their use, through protection of their identity, has resulted in the development of one of the few privileges accorded to the State. The public interest in protecting the sources of information concerning the commission of crimes is served by providing for the non-disclosure of the identity of informants except when compelling circumstances require it. Disclosure should only be required when constitutional problems are raised or when the informant's identity is to be disclosed at trial." Ill. Ann. Stat., ch. 110A, par. 412(j)(ii), Committee Comments, at 611 (Smith-Hurd 1985).
The seminal case concerning the constitutional right of an accused to know the names of persons having firsthand knowledge of the commission of the offense charged even though that person is an informant is Roviaro v. United States (1957), 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623. There, the defendant had been charged in one count with a sale of narcotics to "one John Doe." Another count charged the defendant was fraudulently receiving, buying and importing narcotics. Defendant filed a pretrial motion for a bill of particulars advising defendant as to the true name, address and occupation of the person to whom the narcotics were allegedly sold, but the trial court denied the request. At trial, the State's evidence revealed that the person identified as "John Doe" had been present at the time of the alleged offenses, but the trial court refused to allow cross-examination as to the identity of that person. The United States Supreme Court ruled that, because of the unidentified person's presence at the time of the crime, his testimony was highly material. Accordingly, the Supreme Court held that the informer's privilege was erroneously invoked to prevent disclosure of the identity of the person designated as "John Doe."
The court described the informer's privilege as actually being a privilege of the government to withhold the identity of persons who furnish it with information concerning law violations. The court discussed the ...