MEMORANDUM DECISION
                                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),                                        Mar 29 2016, 7:07 am
this Memorandum Decision shall not be                                              CLERK
regarded as precedent or cited before any                                      Indiana Supreme Court
                                                                                  Court of Appeals
court except for the purpose of establishing                                        and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Gregory F. Zoeller
Wieneke Law Office                                       Attorney General
Brooklyn, Indiana                                        Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Marvin Beville,                                          March 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1507-CR-890
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable Michael J. Lewis,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         84D06-1411-F6-2855



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1507-CR-890 | March 29, 2016            Page 1 of 12
[1]   Marvin Beville (“Beville”)1 was charged with Class A misdemeanor dealing in

      marijuana and Level 6 felony maintaining a common nuisance in Vigo Superior

      Court. Beville brings this interlocutory appeal and argues that the trial court

      erred when it denied his motion to compel the State to provide him with a copy

      of the video recording of the alleged controlled drug transaction.


[2]   We affirm.

                                         Facts and Procedural History


[3]   On December 5, 2014, the State charged Beville with Class A misdemeanor

      dealing in marijuana and Level 6 felony maintaining a common nuisance.

      Importantly, the charges alleged that Beville delivered marijuana to a

      confidential informant (“CI”) on October 23, 2014. The State obtained a video

      recording of the transaction between Beville and the CI. Beville sent a letter to

      the prosecutor requesting a copy of the video recording and listing two possible

      names of the CI, but neither name correctly identified the informant in this

      case.


[4]   At the initial hearing, the trial court ordered discovery pursuant to Local Rule

      6. Local Rule 6 provides in relevant part:


                 In all criminal cases, the Court has entered the following General
                 Order concerning pre-trial discovery:




      1
          The trial court documents identify Defendant as Marvin Beville and Marvin Belville interchangeably.

      Court of Appeals of Indiana | Memorandum Decision 84A01-1507-CR-890 | March 29, 2016             Page 2 of 12
              (B) (1) The State shall perform these obligations in any manner
              mutually agreeable to the Prosecutor’s Office and to defense
              counsel. The State shall provide legible copies of existing written
              statements described in paragraphs (A)(1), (2), (3), and (7). Other
              items shall be provided for examination, testing, copying,
              photographing, or other proper use either by agreement or at
              specified reasonable times and places. Defense counsel shall
              provide reasonable notice of such examination and shall schedule
              these examinations in cooperation with the State. An application
              to the Court shall be made to obtain copies of audio or video
              tape. Said application shall state in specific terms the necessity
              for such copies.


                                                       ***

              (G) (1) The Court may deny disclosure upon showing that:


                   (b) There is a paramount interest in non-disclosure of an
                   informant[’]s identity and a failure to disclose will not
                   infringe the Constitutional rights of the accused. Disclosure
                   of the identity of witnesses to be produced at a hearing or
                   trial will be required.


      Appellant’s App. pp. 13, 13(a), 14.

[5]   The State filed its notice of compliance with discovery on January 5, 2015,

      which provides in pertinent part: “All audio or video recordings are maintained

      by the Office of the Vigo County Prosecutor and are available for review by

      contacting the deputy prosecutor to schedule a mutually agreeable time.”

      Appellant’s App. p. 18. Although the State allowed defense counsel to review

      the video recording at the prosecutor’s office, it would not allow defense

      counsel to obtain a copy to review with Beville.


      Court of Appeals of Indiana | Memorandum Decision 84A01-1507-CR-890 | March 29, 2016   Page 3 of 12
[6]   Beville filed a motion to compel discovery of the video recording of the alleged

      controlled buy on April 28, 2015. A hearing was held on May 6, 2015, and the

      trial court took the matter under advisement. On the same day, Beville filed an

      application to obtain copies of audio and video pursuant to Local Rule 6 (B)(1).

      On May 13, 2015, the trial court denied Beville’s motion to compel and

      concluded that the State was not required to provide Beville with the

      audio/video of the alleged controlled buy or any other documents identifying

      the CI. Appellant’s App. p. 60. Beville now appeals.

                                            Standard of Review


[7]   A trial court has broad discretion in ruling upon discovery matters and will only

      be overturned upon a showing of abuse of discretion. Skinner v. State, 920

      N.E.2d 263, 265 (Ind. Ct. App. 2010) (citing State v. Hogan, 588 N.E.2d 560,

      562 (Ind. Ct. App. 1992)), trans. denied. An abuse of discretion occurs when the

      trial court reaches a conclusion that is against the logic and natural inferences to

      be drawn from the facts of the case. Corll v. Edward D. Jones & Co., 646 N.E.2d

      721, 723 (Ind. Ct. App. 1995). “Due to the fact-sensitive nature of discovery

      issues, a trial court’s ruling is cloaked with a strong presumption of

      correctness.” Hlinko v. Marlow, 864 N.E.2d 351, 353 (Ind. Ct. App. 2007), trans.

      denied.

                                         Discussion and Decision


[8]   Beville argues that the trial court erred in denying his request to obtain a copy

      of the video recording of the alleged controlled buy. He specifically contends

      Court of Appeals of Indiana | Memorandum Decision 84A01-1507-CR-890 | March 29, 2016   Page 4 of 12
      that the video is both relevant to the defense and necessary to ensure a fair trial,

      and as such, the trial court should have granted Beville’s motion to compel. The

      State argues that the CI’s identity will be revealed if Beville is permitted to

      review the video.

[9]   The Indiana Rules of Trial Procedure generally apply to criminal proceedings in

      the absence of a conflicting criminal rule. Ind. Crim. Rule 21. Indiana Trial

      Rule 26(B)(1) provides:


              Parties may obtain discovery regarding any matter, not
              privileged, which is relevant to the subject-matter involved in the
              pending action, whether it relates to the claim or defense of the
              party seeking discovery or the claim or defense of any other
              party.


      When it comes to a defendant’s discovery request in a criminal case, the

      following test has been applied to determine whether the information is

      discoverable: (1) there must be a sufficient designation of the items

      sought to be discovered (particularity); (2) the items requested must be

      material to the defense (relevance); and (3) if the particularity and

      materiality requirements are met, the trial court must grant the request

      unless there is a showing of “paramount interest” in non-disclosure.

      Lewis v. State, 726 N.E.2d 836, 843 (Ind. Ct. App. 2000) (citing In Re

      WTHR-TV v. Cline, 693 N.E.2d 1, 6 (Ind. 1998)).




      Court of Appeals of Indiana | Memorandum Decision 84A01-1507-CR-890 | March 29, 2016   Page 5 of 12
[10]   “The general policy is to prevent disclosure of an informant’s identity unless the

       defendant can demonstrate that disclosure is relevant and helpful to his defense

       or is necessary at trial.” Mays v. State, 907 N.E.2d 128, 131 (Ind. Ct. App. 2009)

       (quoting Schlomer v. State, 580 N.E.2d 950, 954 (Ind. 1991)). Because the State

       has the privilege to withhold the identity of an informant, the burden is upon

       the defendant seeking disclosure to demonstrate exception to the privilege that

       the informant remain anonymous. Beverly v. State, 543 N.E.2d 1111, 1114 (Ind.

       1989). “[B]are speculation that the information may possibly prove useful” is

       not enough to justify the disclosure of a confidential informant’s identity, and

       an informant’s identity shall not be disclosed “to permit ‘a mere fishing

       expedition.’” Mays, 907 N.E.2d at 131 (citations omitted).


[11]   “The trial [court] must then make [a] decision by balancing the public interest

       in encouraging a free flow of information to the authorities with the defendant’s

       interest in obtaining disclosure to prepare his defense.” Furman v. State, 496

       N.E.2d 811, 814 (Ind. Ct. App. 1986) (quoting Roviaro v. United States, 353 U.S.

       53, 62 (1957)).

[12]   Beville specifically requested a copy of the video recording of the alleged

       controlled buy and explained at the hearing his belief that the State intended to

       introduce the video as its main piece of evidence at trial. Beville also

       emphasized his need to obtain a copy of the video so an expert could determine

       its authenticity for purposes of his defense. Arguably, Beville met the

       particularity and materiality prongs of the test related to the video recording.



       Court of Appeals of Indiana | Memorandum Decision 84A01-1507-CR-890 | March 29, 2016   Page 6 of 12
       However, we hold that Beville failed to overcome his burden that an exception

       to the privilege should apply.

[13]   Local Rule 6 (G)(1)(b) provides that a court may deny disclosure upon showing

       that “[t]here is a paramount interest in non-disclosure of an informant’s identity

       and a failure to disclose will not infringe the Constitutional rights of the

       accused.” Although Beville argues that his purpose is to review the video to

       develop a defense at trial, after watching the video he will learn the identity of

       the CI. Beville does not know the identity of the CI. The trial court determined

       that the State showed a “paramount interest” in protecting the CI’s identity to

       prevent retaliation and ensure that individuals come forward with information

       to assist law enforcement. See Lewis, 726 N.E.2d at 843; Furman, 496 N.E.2d at

       814. We cannot say that the trial court’s conclusion is against the logic and

       natural inferences to be drawn from the facts of this case.

[14]   Further, and very importantly, the State provided Beville’s defense counsel an

       opportunity to review the video of the alleged controlled buy at the prosecutor’s

       office. Although the State restricted Beville from being present at the time of

       review, his defense counsel may sufficiently prepare for trial and develop

       defenses without disclosing the CI’s identity to Beville. An expert would also

       have an opportunity to review the video recording to determine whether it is

       authentic under this arrangement by making an appointment. Both the public

       interest of encouraging a free flow of information to the authorities and

       Beville’s interest to prepare his defense are served here.



       Court of Appeals of Indiana | Memorandum Decision 84A01-1507-CR-890 | March 29, 2016   Page 7 of 12
[15]   We conclude that the trial court properly denied Beville’s motion to compel the

       State to provide a copy of the video recording of the alleged controlled drug

       transaction.


[16]   Affirmed.


       Kirsch, J., concurs.


       Brown, J., dissents with opinion.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1507-CR-890 | March 29, 2016   Page 8 of 12
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Marvin Beville,                                          Court of Appeals Case No.
                                                                84A01-1507-CR-890
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Brown, Judge, dissenting.


[17]   I respectfully dissent from the majority opinion that the trial court properly

       denied Beville’s motion to compel the State to provide a copy of the video

       recording of the alleged controlled drug transaction.

[18]   In Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623 (1957), the Court discussed

       the government’s privilege in withholding the disclosure of a confidential

       informant. The Court held:


               A . . . limitation on the applicability of the privilege arises from
               the fundamental requirements of fairness. Where the disclosure
               of an informer’s identity, or of the contents of his
               communication, is relevant and helpful to the defense of an
               accused, or is essential to a fair determination of a cause, the
               privilege must give way. In these situations the trial court may
               require disclosure and, if the Government withholds the
               information, dismiss the action.


       Court of Appeals of Indiana | Memorandum Decision 84A01-1507-CR-890 | March 29, 2016   Page 9 of 12
       353 U.S. at 60-61, 77 S. Ct. at 628 (footnotes omitted). The Court further held:


               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.


       Id. at 62, 77 S. Ct. at 628-629.


[19]   The majority finds, as argued by the State, that “after watching the video

       [Beville] will learn the identity of the CI.” Slip op. at 7. However, other than the

       State’s mere assertion, the record does not support such a conclusion. The

       record does not reveal that the trial court examined the video and made such a

       finding, and the record on appeal does not contain a copy of the video.

[20]   Beville’s motion to compel requested that the State comply with the discovery

       request that includes “any video of alleged hand to hand buy with the

       confidential informant.” Appellant’s Appendix at 38. His request to obtain

       copies of audio and video alleged that the State indicated that video and/or

       audio of a hand to hand buy with the CI exists and that it intends to use the

       video and/or audio at a jury trial. Appellant’s Appendix at 41. The CI was

       apparently a participant in the alleged controlled buy, and I could not say that

       the CI played merely a tangential role, or that the video of the buy is not highly

       material. Further, I would not find that the opportunity for Beville’s counsel to


       Court of Appeals of Indiana | Memorandum Decision 84A01-1507-CR-890 | March 29, 2016   Page 10 of 12
       review the video recording is a sufficient substitute for an opportunity for

       Beville to examine the recording and assist in the preparation of his defense.

[21]   Local Rule 6(G)(1) states that “[t]he Court may deny disclosure upon showing

       that . . . [t]here is a paramount interest in non-disclosure of an informant[’]s

       identity and a failure to disclose will not infringe the Constitutional rights of the

       accused.” Appellant’s Appendix at 14. In its objection, the State asserted

       generally that the disclosure “would only serve to make the CI the target for

       reprisal from those upset by the investigation.” Id. at 48. However, the State

       does not point to specific facts or the record in support of its assertion, and there

       is no allegation that Beville or his associates are violent. The State does not

       assert that any police officer witnessed the alleged buy, that others will testify as

       to the alleged buy, or that the CI was not the sole material witness. Under the

       circumstances, I cannot say that there is a paramount interest in non-disclosure

       of the CI’s identity and that a failure to disclose will not infringe the

       Constitutional rights of the accused. See Roviaro, 353 U.S. at 63-65, 77 S. Ct. at

       629-630 (observing that the informant’s possible testimony was highly relevant

       and might have been helpful to the defense, the defendant’s opportunity to

       cross-examine the law enforcement agents was “hardly a substitute for an

       opportunity to examine the man who had been nearest to him and took part in

       the transaction,” the informant had helped to set up the criminal occurrence

       and had played a prominent part in it, and concluding that “[t]he desirability of

       calling [the informant] as a witness, or at least interviewing him in preparation

       for trial, was a matter for the accused rather than the Government to decide,”


       Court of Appeals of Indiana | Memorandum Decision 84A01-1507-CR-890 | March 29, 2016   Page 11 of 12
       and concluding that trial court committed prejudicial error in permitting the

       government to withhold the identity of its undercover employee in the face of

       repeated demands by the accused for his disclosure); see also Commonwealth v.

       Dias, 451 Mass. 463, 470, 886 N.E.2d 713, 719 (2008) (holding that a pretrial

       disclosure order of an informant’s identity was necessary for a fair presentation

       of the case at trial because the informant’s information and observations were

       relevant and helpful to the defense); Wilson v. State, 8 Md. App. 653, 669, 262

       A.2d 91, 100 (1970) (holding that an informant’s testimony “might have thrown

       doubt in the identity of the articles exchanged between him” and the defendant,

       “[t]he desirability of calling the [informant] as a witness, or at least interviewing

       him in preparation for trial, was a matter for [the defendant] rather than the

       State to decide,” and that, under the circumstances, “the privilege of

       nondisclosure must yield and that the trial court abused its discretion in refusing

       to compel disclosure demanded by [the defendant]”), cert. denied, 258 Md. 731

       (1970).


[22]   For the foregoing reasons, I would reverse the trial court’s denial of Beville’s

       motion to compel.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1507-CR-890 | March 29, 2016   Page 12 of 12
