APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DENNIS PORTER, JUDGE PRESIDING.
The Honorable Justice Rizzi delivered the opinion of the court: Tully, J., and Cerda, J., concur.
The opinion of the court was delivered by: Rizzi
The Honorable Justice RIZZI delivered the opinion of the court:
In a jury trial, defendant, Maurice Bufford, was convicted of possession of a controlled substance with the intent to deliver, and sentenced to ten years imprisonment. 720 ILCS 570/401 (West 1992). Defendant contends that his sixth amendment rights to confrontation, to prepare a defense and to a fair trial were violated when the trial court refused to order the State to disclose its confidential informant. We agree. We reverse and remand for a new trial.
A Chicago police officer obtained a warrant on October 8, 1989, to search a person known as "Marvel" and to search the entire single family residence at 8851 S. Carpenter, Chicago. The underlying probable cause for the search warrant was based on the following information.
On October 8, 1989, the police stopped an automobile for a traffic violation. The police officer searched the driver of the automobile and discovered cocaine in the driver's coat pocket. The driver is the confidential informant whose identity was sought by defendant. The informant told the officer that earlier in the day he was at "Marvel's" home. According to the informant, "Marvel" wanted him to deliver some cocaine. The informant further stated that he had made numerous deliveries in the past for "Marvel," and that "Marvel" sells about two kilograms of cocaine a week from his home at 8851 S. Carpenter. The informant continued that "Marvel" brought out a large brick of white substance, cut out a portion with a knife, weighed it on a triple beam scale and placed the substance into a plastic bag. "Marvel" then handed the cocaine to the informant who left. The informant was eventually stopped by the police officer.
Based on the above information, given under oath by the confidential informant and the police officer, a search warrant was issued. The warrant gave authority to search a male known as "Marvel," who was 35 years old, 6' 1" tall and weighed 200 pounds, and the entire premises at 8851 South Carpenter.
Sometime thereafter on the same day, the officer, his two partners and two teams of uniformed officers went to 8851 South Carpenter to execute the search warrant. When they arrived, the police officers knocked on the door and announced themselves twice. When no one answered, they knocked the door down with a sledgehammer. The officers discovered three people inside the house; an elderly woman in the kitchen, and defendant and a woman who were naked and engaged in sexual intercourse in a room in the back of the house. The officers ordered defendant and the woman to cease having sexual intercourse and to stand. The officers searched their clothing which was on the floor. After the search of the clothing failed to uncover anything unusual, the officers allowed defendant and the woman to dress.
All three people were told to wait in the kitchen while the police officers searched the home. In the same room where defendant and the woman had been and which was defendant's bedroom, the officers found a brick of cocaine on the top shelf of the closet, a triple beam scale and other paraphernalia that could be used in the distribution of narcotics. No drugs or money were found on anyone or anywhere else in the house. The officers arrested defendant and gave him his Miranda warnings. Defendant stated that he lived in the home and the room where the cocaine was found was his room. On the way to the police station, the officers stopped at a tavern to look for "Marvel," but did not find him there. The evidence seized, including the plastic bag in which the brick of cocaine was found, was eventually tested for defendant's fingerprints. These tests failed to reveal defendant's fingerprints on any of the items.
Defendant's theory of the case was that the cocaine belonged not to him, but to his brother, Norvel, who lived at the same address as defendant and who was 35 years old at the time. Defendant attempted to show that the person referred to in the search warrant as "Marvel" was actually defendant's brother, Norvel. Defendant further asserted that the officers knew this, but settled on apprehending defendant when his brother was not at home during the search.
Defendant, therefore, moved in limine for disclosure of the State's confidential informant. It was defendant's position that the confidential informant would be able to identify defendant's brother, Norvel, as the person whom the informant referred to in the complaint for the search warrant as "Marvel." By showing that "Marvel" and Norvel were one and the same, defendant was attempting to establish that the cocaine belonged not to him, but to his brother, Norvel. The trial court denied defendant's motion. The defendant argues that the denial of this motion violated his sixth amendment rights to confrontation, to present a defense and to a fair trial. We agree.
The state argues that defendant did not preserve this issue for appeal by not including it in his motion for a new trial. We, nevertheless, will review this issue pursuant to the plain error doctrine. See 134 Ill. 2d 615(a).
In a criminal prosecution, the State has a qualified privilege to withhold the identity of informants. Roviaro v. United States (1957), 353 U.S. 53, 59, 1 L. Ed. 2d 639, 644, 77 S. Ct. 623, 627. Whether this privilege must give way to a defendant's sixth amendment rights is governed by issues of fundamental fairness. People v. Lewis (1974), 57 Ill. 2d 232, 237, 311 N.E.2d 685, 688. See also Illinois 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.
The United States Supreme Court long ago in Roviaro established the appropriate test to apply when determining when disclosure is compelled. There, the Court held that each case must be decided on its own facts, balancing the public's interest in the flow of information against the individual's right to ...