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No. 2--02--0420

The State appeals the circuit court's order dismissing anindictment against defendant, Stewart Rose, because the Staterefused to reveal its confidential informant. The State contendsthat it did not have to reveal the informant's identity becausedefendant never demonstrated that this information was necessary toprepare his defense. We agree and therefore reverse and remand.

Defendant was indicted on two counts of possession with intentto manufacture a controlled substance (720 ILCS 570/401(a)(6.6)(B)(West 2000)) and controlled substance trafficking (720 ILCS570/401.1(a) (West 2000)). During discovery, defendant asked theState to supply the name of its confidential informant. In itsresponse, the State argued that disclosure was not required. Itcontended that the informant merely supplied the investigatingagent with defendant's pager number and was not further involved inthe transactions that led to defendant's arrest. The informant wasnot present when defendant was arrested.

Defendant renewed his request at a hearing on January 10,2002. Defense counsel stated that he was concerned becausedefendant "was talking to several non-police officers, and I don'twant to have a situation where one of them incited him,precipitated him to commit criminal activity at a time when theywere actually working for law enforcement." The defense proposedthat it would give the court a factual narrative including thepeople defendant was living with and another person defendantbefriended. The court could review the information in camera,along with the State's disclosures, and decide whether to disclosethe informant's identity.

The court stated that defendant's proposal "made sense." Thecourt stated that if one of the names defendant supplied matchedthat of the informant, the court would order disclosure.

The prosecutor initially agreed to this procedure. However,when the parties returned to court on January 29, 2002, theprosecutor asked the court to give him time to file a motion toreconsider the court's ruling. In doing so, he argued thatdefendant had not made a sufficiently specific factual showing torequire disclosure of the informant. The State argued that becausedefendant was saying that the informant could have been one of anumber of people and little more, defendant's request was merely a"fishing expedition" that did not warrant the State giving up theprivilege against disclosing the informant's identity. At a laterhearing, defendant again argued that he had "dealings" with severalpeople and, if one of them happened to be the informant, the "bellhas rung."

When the State continued to balk at disclosing the informant'sidentity, defendant moved to dismiss the indictment. The trialcourt granted the motion, and the State timely appealed.

On appeal, the State argues that the trial court erred bydismissing the indictment. The State contends that an informant'sidentity is presumptively privileged unless a defendant canestablish that he is unable to prepare his defense without theinformant. The State argues that defendant's vague reference to anentrapment defense is not enough to overcome the privilege.

A trial court has the inherent authority to dismiss anindictment when the failure to do so would result in a deprivationof due process or a miscarriage of justice. People v. Newberry,166 Ill. 2d 310, 313-14 (1995). Where, as here, there is nodispute about the facts and the issues are purely legal, our reviewis de novo. People v. Coleman, 307 Ill. App. 3d 930, 934 (1999).

Supreme Court Rule 412(j)(ii) governs when the State mustdisclose a confidential informant's identity. The rule provides asfollows:

"Disclosure of an informant's identity shall not berequired where his identity is a prosecution secret and afailure to disclose will not infringe the constitutionalrights of the accused. Disclosure shall not be deniedhereunder of the identity of witnesses to be produced at ahearing or trial. " 188 Ill. 2d R. 412(j)(ii).

Defendant has the burden to show that disclosure of theinformant's identity is necessary to prepare his defense. Peoplev. Herron, 218 Ill. App. 3d 561, 574 (1991). Deciding whether torequire disclosure of this information involves balancing thepublic interest in protecting informants against a defendant'sright to prepare a defense. Roviaro v. United States, 353 U.S. 53,62, 1 L. Ed. 2d 639, 646, 77 S. Ct. 623, 628-29 (1957); People v.Woods, 139 Ill. 2d 369, 378 (1990). When an informant is allegedto have participated in, witnessed, or helped to arrange the crimeand disclosure will not jeopardize the informant's safety, theprivilege will generally give way to a defendant's right to preparehis defense. Woods, 139 Ill. 2d at 378. On the other hand, wherethe informant neither participated in nor witnessed the offense,the informant is not a crucial witness and his identity may bewithheld. Herron, 218 Ill. App. 3d at 572.

Here, the prosecutor repeatedly asserted that the informantwas merely a tipster who had no further involvement in the criminaltransactions. Defendant never offered anything to rebut thisexcept vague speculation. Defense counsel stated only thatdefendant "was talking to several non-police officers" and wasconcerned that one of these acquaintances might have been theinformant. Later, defense counsel explained that defendant had had"dealings" with several people, one or more of whom might have beenworking for the police.

Under Herron, defendant's burden encompassed something morethan vague allegations that defendant had been "talking" or"dealing" with several people, one of whom might have been theinformant. Defendant never offered any details showing how any ofthe people he dealt with induced him to commit the offenses. Ifanyone unfairly coerced defendant into committing a crime,defendant would know this and would have been able to provide hislawyer with more details. Instead, it appears that the defensewent on a fishing expedition, hoping that learning the informant'sname would allow it to develop some kind of defense. However,defendant had to do more. A vague assertion that defendant hadpossibly spoken to or dealt with the informant would requiredisclosure of the informant's identity in virtually every case,because presumably the informant and the person he or she informson will have had some type of prior relationship.

We are not persuaded by defendant's contention that a moreliberal disclosure standard should apply because the initialdisclosure was to be made to the court in camera. Rule 412(j)(ii)does not differentiate between in camera disclosures and those inopen court. If defendant did not meet his burden, disclosure wassimply not required, regardless of the forum. Moreover, the trialcourt indicated by its remarks that if it found a "match"--if theinformant's name appeared on the list defendant was to submit--itwould order disclosure without a further showing.

The judgment of the circuit court of Du Page County isreversed, and the cause is remanded.

Reversed and remanded.

CALLUM and GROMETER, JJ., concur.