        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE           FILED
                        JANUARY SE SSION, 2000      March 17, 2000

                                                 Cecil Crowson, Jr.
                                               Appellate Court Clerk
STATE OF TENNESSEE,   )          NO. M1999-00254-CCA-R3-CD
                      )
    Appellan t,       )
                      )          MONTGOMER Y COUNTY
VS.                   )
                      )
GEORGE DEVON COLLINS, )          HON . JOHN W. GA SAW AY, III,
                      )          JUDGE
    Appellee.         )
                      )
                      )          (State Appeal—Dismissal of
                      )          Indictme nt)




FOR THE APPELLEE:                     FOR THE APPELLANT:

THOMAS R. MEEKS                       PAUL G. SUMMERS
137 Franklin Street                   Attorney General and Reporter
Clarksville, TN 37040
                                      KIM R. HELPER
                                      Assistant Attorney General
                                      425 Fifth Avenu e North
                                      Nashville, TN 37243

                                      JIM CARNEY
                                      District Attorney General

                                      DANIEL BROLLIER
                                      Assistant District Attorney General
                                      120 Legion Street
                                      Clarksville, TN 37040

OPINION FILED ________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                   OPINION

       The State appeals as of right from the order of the trial court dismissing the

case following the State's refusal to reveal the identity of its confidential informant

after having been ordered to do so by the trial court. The State sets forth the

following issue for our review: whether the trial court abused its discretion by

dismissing the indictment when the State did not reveal the identity of its

confidential informant. We hold that the trial judge did not abuse his discretion

by dism issing the indictme nt, and w e affirm the judgm ent of the tria l court.




       The Defendant, George Devon Collins, wa s indicted by the M ontgom ery

Coun ty Grand Jury for one count of criminal trespass and seven counts of drug-

related offenses occurring within one-thousand feet of a school. On April 9,

1999, the Defendant filed a motion asking the tria l court to ord er the Sta te to

reveal the identity of the alleg ed inform ant use d to secure the search warrant for

the residence in w hich the drugs , which were the basis for the indictm ent, were

found. The D efenda nt alleged that the info rmant could provide exc ulpatory

testimony which would contradict the charges against him. After a hearing on

April 23, 1999, the trial court found that the confidential informant was a material

witness because the residence in which the drugs were found was not the

Defe ndan t’s residenc e, and th e informant could testify that even though the

Defendant was present at the residence, the drugs at the residence were not the

Defendant’s. The trial court thus ordered the State to reveal the identity of the

confiden tial informa nt prior to trial.




                                           -2-
      On April 26, 1999, the day the case was set for trial, the Defendant

informed the trial court that the State had elected not to reveal the identity of the

informant as ordered, and the Defendant asked the court to dismiss the case.

The following colloquy then occurred between the parties:

      THE COURT: The State elects not to proceed?

      STATE: No sir, the State will not disclose the identity of the
      informant though.

      THE COU RT: So you move to dismiss?

      STATE: No, sir, I am not moving to dismiss.

      THE COU RT: Well, then disclose the identity.

      STAT E: The Sta te would ask for permission to file an interlocutory
      appeal on the Court’s decision?

      THE COU RT: Prepare your papers.

      STAT E: Yes, sir.

      THE COURT: Mr. Meeks, are you ready this morning?

      DEFENSE: Yes, we a re ready. But I can be ready – I am here
      ready for trial, but sinc e they ha ve not giv en me my disc overy, I
      cannot go forward.

      THE COU RT: Mr. Brollier [Assistant District Attorney], have you got
      anything before th e Cou rt in the way of an application for an
      interlocutory appeal? I mean, have you filed something?

      STATE: No, sir, I understood – I presumed, Your Honor, that the
      Court would treat this case as you did the Lawrence Jackson Case
      last week, and on the defendant’s motion would dismiss the case.
      The State is not moving to dismiss the case. I could file the
      appe al—

      THE COU RT: H ere is the w ay I see it, and you can th ink ab out it
      and tell me if I am wron g. You are right, I grante d the d efend ant’s
      motion [in the Lawrence Jackson case] and the defendant moved to
      dismiss. I got to thinking about it however, after the fact, the current
      order before – you know, the current order of the Court is for the
      State to disclo se. It is no t as if you have an op tion of choosin g to
      disclose or not because I have ordered you to . So, yo u eithe r do it

                                        -3-
       or you choose not to proceed. I will grant your motion, Mr. Meeks,
       but for further consideration, think about what the Court has said.
       It really ought to be shown dismiss ed on a motion of the Sta te. I am
       not going to d o it in this case . I will dismiss it on motion of the
       defendant. But think a bout w hat the Cour t said. In the futu re, if it
       happens again, it is not as if you can just defy a Court order. You
       can’t. So, if you say that you are not going to disclo se, the n it is on
       the State to dism iss. Th ink on that, an d if you think th e Cou rt is
       wrong, that’s fine, I’ll consid er it ano ther da y. But th is case , I will
       dismiss on the defendant’s motion.

       DEFE NSE: W ith prejudice, You r Honor?

       THE COU RT: An d the Sta te’s applica tion or m otion to file an
       interlocutory appe al is den ied. There is nothing before the C ourt
       today.




       It is from the dismissal on the motion of the Defendant that the State

appeals, alleging that the trial court abused its discretion by dismissing the

indictme nt. Howe ver, in its brief th e State argues that the trial cour t abuse d its

discretion by orde ring the S tate to reve al the iden tity of its confide ntial inform ant.

It asserts that the trial court’s order dismissing the indictment should be reversed

because the court erred in ordering the State to revea l the identity o f its

informant. We conclude that the issue of whether the trial court abused its

discretion in ordering the State to reveal its informant is not properly before us;

thus, w e will no t cons ider it in th is app eal.




       Rule 3(c) of the Tennessee Rules of Appellate Procedure governs the

availability of an appeal as of right by the State in a c riminal ca se. It provides as

follows:

       In criminal actions an appeal as of right by the state lies only from
       an order or judgment entered by a trial court from which an appeal
       lies to the Suprem e Court or C ourt of Criminal Appeals: (1) the
       substantive effect of w hich resu lts in dism issing an indictme nt,

                                             -4-
       information, or complaint; (2) setting aside a verdict of guilty and
       entering a judgm ent of a cquitta l; (3) arresting judgment; (4) granting
       or refusing to revoke probation; or (5) remanding a child to the
       juven ile court. The state may also appeal as of right from a final
       judgment in a habeas corpus, extradition, or post-conviction
       proceeding.

Tenn. R. Ap p. P. 3( c). The spec ific prov ision g overn ing this appe al as o f right is

Rule 3(c)(1), which allows an appeal from an order entered by the trial court that

results in the dismissal of the indictmen t. Thus, the only issu e properly be fore us

is whether the trial judge abused his discretion by dismissing the indictment due

to the State’s refusa l to comply w ith the court’s order.




       Had the State wished to appeal the order of the trial court mandating the

disclosure of the identity of the confidential informant, it should have filed an

interlocutory appeal pursuant to either Rule 9 or Rule 10 of the Ru les of Ap pellate

Procedure. It appears from the discussion between the parties and the court on

the day o f trial that the trial court would have granted permission to file an

interlocutory appeal pursuant to Rule 9 if the State had filed the proper motions

and had not suggested to the court that it dismiss the case on the Defen dant’s

motion. If the trial court had refused permission, the State co uld have applied to

this Court for interlocutory review under Rule 10. These are the only procedures

availa ble for the State to seek review of an inte rlocutory trial court order which

does not have the subs tantial effect o f dismiss ing the ch arges. See Tenn. R.

App. P . 3, 9, 10.




       We now tu rn to the issue th at is properly before us, and we conclude that

the trial court did not ab use its discretion by dismissing the indictment when the


                                           -5-
State refuse d to co mply with the trial cou rt’s orde r. Ther e is no rule dire ctly

providing for the dism issal of an in dictment for failure to co mply w ith court-

ordered discovery, but Tennessee Rule of Crim inal Procedu re 16(d)(2),

concerning the regulation of discovery, provides as follows:

         Failure to Com ply with a Request. – If at any time during the course
         of the proceedings it is brough t to the atten tion of the c ourt that a
         party has failed to comply with this rule, the court may order such
         party to permit the discovery or inspection, grant a continuance, or
         prohib it the party from introducin g eviden ce not dis closed, or it may
         enter such other order as it deems just under the circumstances.

(Em phas is added). In examining failure to comply with discovery, we have

emphasized that a trial court has great discretion in fashioning a remedy for non-

com pliance with discov ery. See State v. James, 688 S.W.2d 463, 466 (Tenn.

Crim. App. 1 984).      T he sa nction applie d must fit the circumstances of the

individual case. See id.; State v. Cad le, 634 S.W.2d 623, 625 (Tenn. Crim. App.

1982).




         Although Tennessee Rule of Criminal Procedure 16(d)(2) does not

spec ifically provide that a trial court may dismiss an ind ictme nt wh en a p arty fails

to comp ly with a discovery order, we believe that authority is apparent under the

provision granting the court the authority to “enter such other order as it deems

just under the circumstanc es.” See State v. Street, 768 S.W.2d 703, 710 (Tenn.

Crim. App. 19 88); State v. Freseman, 684 S.W.2d 106, 107 (Tenn. Crim. App.

1984) (suggesting that if a trial court has the authority to dismiss a case as a

sanction for failure to com ply with dis covery orders, it is im plied auth ority

pursuant to Tenn . R. Crim . P. 16(d)(2 )). Unde r facts such as those presented in

this case, dismissal is the only just sanction available to the trial court. The


                                           -6-
sanctions enumerated in the rule would be either ineffective or inappropriate.

After a hea ring, the trial cou rt orde red the State to disclos e the id entity o f its

confidential informa nt. On th e day of trial, the State in forme d the c ourt tha t it

wou ld neither obey the trial court’s order nor dismiss the case. The trial court

was therefore faced with the option of imposing some sort of sanction or allowing

the State to simply defy the order of the court. Because the State had already

been ordered to reveal the identity of the informant, a furthe r order to com ply

wou ld have been ineffective.        Likewise, a continuance would have been

ineffective because the State indicated a refusal to reveal the identity of the

informant at any time. Exclusion of evidence wo uld have been ina ppropria te

because the evidence was sought on behalf of the Defendant.                 Citing the

assistant attorney general for contempt of court would not necessarily have

resolved the trial judge's dilemma. Without the option of dismissing the case, the

trial court would have had no effective sanction for failure to comply w ith its order.

To leave a trial court with no means to enforce its orders would subvert the

judicial proc ess.




       Accordingly, we ho ld that th e trial jud ge did not ab use h is discr etion in

dism issing the ind ictme nt due to the S tate’s re fusal to com ply with the co urt’s

order to disclose the identity of its confidential informant. The judgment of the

trial court is affirmed.




                                          ______________________________
                                          DAVID H. WELLES, JUDGE




                                          -7-
-8-
CONCUR:




________________________________
JERRY L. SMITH, JUDGE




________________________________
L.T. LAFFERTY, SENIOR JUDGE




                              -9-
