                                                                                             08/11/2020


                                          DA 18-0501
                                                                                         Case Number: DA 18-0501

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2020 MT 200


STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

SHAWN MARIE WALSTON,

               Defendant and Appellant.



APPEAL FROM:           District Court of the Sixth Judicial District,
                       In and For the County of Park, Cause No. DC 16-64
                       Honorable Brenda R. Gilbert, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Chad Wright, Appellate Defender, James Reavis, Assistant Appellate
                       Defender, Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Mardell L. Ployhar, Assistant
                       Attorney General, Helena, Montana

                       Kendra K. Lassiter, Park County Attorney, Livingston, Montana


                                                   Submitted on Briefs: June 24, 2020

                                                              Decided: August 11, 2020


Filed:

                                 cir-641.—if
                       __________________________________________
                                         Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1     Shawn Marie Walston appeals from the August 7, 2017 Order Denying Motion for

Disclosure of Confidential Informant and Alternative Motion to Dismiss issued by the

Sixth Judicial District Court, Park County. After the District Court’s denial of her pretrial

motion, a Park County jury convicted Walston of criminal distribution of dangerous drugs,

methamphetamine, in violation of § 45-9-101, MCA, and criminal possession of dangerous

drugs, methamphetamine, in violation of § 45-9-102, MCA. We restate the issue on appeal

as follows:

       Whether the District Court erred in denying Walston’s motion to disclose the
       identity of a confidential informant.

¶2     We reverse and remand for further proceedings consistent with this Opinion.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     In March 2016, a confidential informant told Detective Tim Barnes of the

Missouri River Drug Task Force that Walston was selling methamphetamine in the area.

The informant had previously provided useful information to the Task Force. Detective

Barnes corroborated the information from the confidential informant with other sources

and applied for a search warrant to use a body wire to record a controlled buy between the

confidential informant and Walston, which was granted.

¶4     On March 10, 2016, Detective Barnes supervised a surveillance team of five officers

to oversee the controlled buy.       Before the buy, officers searched the confidential

informant’s person and vehicle to make sure she did not have access to money or drugs.

After this preliminary search, Detective Barnes put a body wire on the confidential
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informant, which could record audio, and provided the confidential informant with $325

to purchase methamphetamine from Walston. Two detectives followed the informant in a

separate car to the trailer park where Walston lived. Three other officers were already

stationed in two vehicles at the trailer park. Only two of the five officers in the surveillance

team could see Walston’s trailer from their places in the vehicles, but all five officers could

hear the transmission from the confidential informant’s body wire over their radios.

¶5     The confidential informant first met Walston outside her trailer. After a short

conversation between the two women outside, the women went inside the trailer. One

officer witnessed them enter the trailer, but none of the officers could see inside the trailer.

The transcript produced by the State during discovery, but not entered into evidence at trial,

shows conversation relating to the weight and method of ingestion of methamphetamine.

¶6     Upon leaving Walston’s trailer, the confidential informant drove about eight miles

to a predetermined meeting location. She provided officers with a small plastic bag

containing a crystalline substance that field tested positive for methamphetamine. Officers

again searched the informant’s person and vehicle and did not recover any additional

contraband or money.

¶7     The State charged Walston with one count of criminal distribution of dangerous

drugs, methamphetamine, in violation of § 45-9-101, MCA, and criminal possession of

dangerous drugs, methamphetamine, in violation of § 45-9-102, MCA. In response to

Walston’s discovery requests, the State declined to reveal the identity of the confidential

informant who participated in the controlled buy. Walston filed a motion asking the

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District Court to compel the State to disclose the informant’s identity or to dismiss the case.

After laying out the facts alleged by the State in its information that showed the informant

was actively involved in the charged criminal activity, Walston argued:

       [T]here is no doubt that the [informant] is able to []give testimony relevant
       to the substance of the charges in this case (a material issue) based upon the
       facts set forth herein. Since the [informant’s] testimony is material and may
       in fact provide exculpatory evidence, the State has a duty to disclose her
       identity pursuant to both § 46-15-322(2)(c) and Rule 502.

The State responded it was relying on its privilege to decline to provide the identity of the

informant. Because the informant was not going to testify at trial, the State maintained,

the burden was on Walston to demonstrate a need for the disclosure beyond mere

speculation the testimony of the informant would be relevant.

¶8     At the hearing on the motion, Walston’s argument focused on whether the officers

would be able to identify her as the source of the drugs found on the confidential

informant’s person upon leaving the trailer court. The State provided testimony from

Detective Barnes to counter this. Barnes explained officers had been given a photograph

of Walston before the operation and the officers in view of the trailer could positively

identify Walston as the woman who spoke with the confidential informant outside the

trailer. Barnes answered affirmatively when asked whether disclosing the identity of the

informant would “compromise the informant’s safety.” This was the only evidence

regarding the informant’s safety presented to the District Court. Walston maintained at the

hearing the informant would be able to give testimony relevant to the substance of the

charges, arguing she was entitled “to cross-examine and confront the confidential

                                              4
informant as to who exactly was present in the residence, what exactly occurred, and

whether or not it was, in fact, Ms. Walston that participated in this deal.” The District

Court denied Walston’s motion.

¶9     The jury at Walston’s first trial was unable to reach a verdict. Ten jurors voted to

convict, while two voted to acquit. A second trial was held March 20, 2018.

¶10    At the second trial, all five officers testified about their roles and observations

during the controlled buy. Detective Barnes testified he heard conversation between the

two women “consistent with a drug transaction.” On cross-examination, Walston’s counsel

elicited testimony from the officers that the audio quality of the body wire’s transmission

was poor and scratchy and only parts of the conversation between the confidential

informant and Walston were intelligible. The transcription shows over 120 portions of the

audio recording are unintelligible.    Detective Barnes also testified the confidential

informant had moved out of the area and no longer worked for the Task Force. The jury

convicted Walston of both counts.

                              STANDARD OF REVIEW

¶11    We review orders granting or denying discovery for an abuse of discretion. State v.

DuBray, 2003 MT 255, ¶ 103, 317 Mont. 377, 77 P.3d 247. The question whether a

defendant’s right to due process has been violated is a constitutional question over which

this Court exercises plenary review. State v. Hauer, 2012 MT 120, ¶ 23, 365 Mont. 184,

279 P.3d 149.




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                                      DISCUSSION

¶12    The District Court provided three grounds for its denial of Walston’s motion to

compel disclosure of the confidential informant. First, the court explained “[p]ursuant to

Rule 502 of the Montana Rules of Evidence the State may refuse to disclose the identity of

an informant if the informant is not going to testify.” Second, the court determined

disclosure was not required if disclosure would result in substantial risk to the informant

and Detective Barnes testified affirmatively when asked whether the informant’s safety

would be compromised. Finally, the court explained mere speculation about the possible

relevance of the informant’s testimony is insufficient to warrant disclosure of the

informant’s identity.     It determined Walston failed to provide anything concrete or

substantive to establish “that disclosure is necessary to properly prepare for trial, that the

informant might possess exculpatory information, or that the informant may have been

involved in the crime.”

¶13    Walston appeals, arguing she had the right to know the identity of the informant

because the informant played a continuous, active, and primary role in the alleged crime.

The State counters Walston failed to meet her burden of showing her need for disclosure

was sufficient to override the government’s interest in protecting the identity of the

informant, but rather provided only speculation and conjecture the informant would

provide relevant testimony.

¶14    The State has the privilege to refuse to disclose the name of an informant under

certain circumstances. “The purpose of the privilege is the furtherance and protection of

                                              6
the public interest in effective law enforcement. The privilege recognizes the obligation of

citizens to communicate their knowledge of the commission of crimes to law-enforcement

officials and, by preserving their anonymity, encourages them to perform that obligation.”

Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 627 (1957). The privilege has

limits, however: “Where the disclosure of an informer’s identity, or 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.” Roviaro, 353 U.S. at 60-61,

77 S. Ct. at 628.

¶15    The enactment of M. R. Evid. 502 in 1977 codified this privilege in Montana.

Rule 502 incorporated the balancing test from Roviaro this Court had previously adopted

in State ex rel. Offerdahl v. District Court of the Eighth Judicial District, 156 Mont. 432,

481 P.2d 338 (1971). See M. R. Evid. 502, cmt. c. Whether the State may rely on its

privilege to keep the confidential informant’s identity confidential requires “balancing of

the defendant’s interest in preparing his defense[] and the government’s interest in

protecting the flow of informant information. The test requires the trial court to consider

the circumstances of each case, the crime charged and any possible defenses, and the

possible significance of the informant’s testimony.” State v. Chapman, 209 Mont. 57, 66,

679 P.2d 1210, 1215 (1984).

¶16    Rule 502 allows the State “to refuse to disclose the identity of a person who has

furnished information relating to or assisting in an investigation of a possible violation of

a law.” But

                                              7
       [i]f it appears in the case that an informer may be able to give testimony
       relevant to any issue in a criminal case . . . and the public entity invokes the
       privilege, the court shall give the public entity an opportunity to show facts
       relevant to determining whether the informer can, in fact, supply that
       testimony. If the Court finds that the informer should be required to give the
       testimony, and the public entity elects not to disclose the informer’s identity,
       the court . . . shall dismiss the charges to which the testimony would relate.”

Rule 502(c)(2) (emphasis added).

¶17    The Montana Legislature provided further guidance about when the State can

withhold the identity of an informer with its 1985 enactment of § 46-15-324(3), MCA.

That statute provides the State is not required to disclose the identity of an informant the

State is not calling to testify if “disclosure would result in substantial risk to the informant

or the informant’s operational effectiveness” and “the failure to disclose will not infringe

the constitutional rights of the accused.” Section 46-15-324(3), MCA.

¶18    The balancing test articulated in Roviaro, Rule 502, and § 46-15-324(3), MCA,

together inform the analysis to determine when the State must disclose the identity of a

confidential informant. Under this analysis, a defendant must provide evidence to the court

supporting the possible relevance of the informant’s testimony to her defense.

See State v. Babella, 237 Mont. 311, 316, 772 P.2d 875, 878 (1989). The factors to consider

include “the circumstances of each case, the crime charged and any possible defenses, and

the possible significance of the informant’s testimony.” Chapman, 209 Mont. at 66, 679

P.2d at 1215.

¶19    In Roviaro, four law enforcement officers arranged a controlled buy between a

confidential informant and the defendant. One officer was in the trunk of the informant’s

                                               8
vehicle and could hear the conversation inside the vehicle. The other officers tailed the

informant’s vehicle. The confidential informant picked up the defendant and the defendant

directed him to drive to a specific location. Once there, the officers witnessed the defendant

get out of the vehicle, pick up a small package, place it in the informant’s car and then walk

away. An officer immediately went to the informant’s vehicle and retrieved a small

package containing three envelopes of heroin. The officer in the trunk testified at trial he

heard the defendant give the informant directions to the spot where the package was picked

up and heard the defendant say he brought the informant “three pieces this time.”

Roviaro, 353 U.S. at 57, 77 S. Ct. at 626. The government refused to disclose the identity

of the informant and the informant did not testify at trial. The United States Supreme Court

reversed the defendant’s conviction. After laying out the balancing test to determine when

an informant’s identity must be disclosed, the Supreme Court explained the informant’s

testimony

       was highly relevant and might have been helpful to the defense. So far as
       [the defendant] knew, he and [the informant] were alone and unobserved
       during the crucial occurrence for which he was indicted. Unless
       [the defendant] waived his constitutional right not to take the stand in his
       own defense, [the informant] was his one material witness.

Roviaro, 353 U.S. at 63-64, 77 S. Ct. at 629. The Court went on to explain the opportunity

to cross-examine the officers “was hardly a substitute for an opportunity to examine the

man who had been nearest to him and took part in the transaction.” Roviaro, 353 U.S. at 64,

77 S. Ct. at 629.




                                              9
¶20    In Chapman, this Court applied Roviaro and summarized its holding: “The United

States Supreme Court held that when, in the interests of fundamental fairness, disclosure

of an informant’s identity is relevant and helpful to the defendant’s defense, or essential to

a fair determination of the case, the privilege must fall.” Chapman, 209 Mont. at 66,

679 P.2d at 1215. We explained when “the informant played a continuous, active and

primary role in the alleged crime,” an informant’s identity is relevant and potentially

helpful to the defendant’s defense and essential to a fair determination of the case.

Chapman, 209 Mont. at 66-67, 679 P.2d at 1215. We held the informant in Chapman

played such a primary role through his extensive and repeated involvement in setting up

the sale and his presence and involvement at the time of the sale of drugs to an undercover

agent, and the district court erred in not compelling the State to disclose the informant’s

identity.

¶21    On the other hand, this Court has declined to compel the disclosure of an informant’s

identity in circumstances when the informant did not play a continuous, active, and primary

role in the alleged crime. In State v. McLeod, the defendant sought the identity of an

informant who arranged a drug sale between the defendant and an undercover agent. While

present at the sale, the record did not show the informant played an active or primary role

in the transaction. The defendant argued he needed the testimony of the informant to

support an entrapment defense. We held “[m]ere conjecture or supposition about the

possible    relevancy   of   the   informant’s    testimony   is   insufficient   to   warrant

disclosure. . . . The defendant must show the informant’s testimony would significantly aid

                                             10
in establishing an asserted defense.” State v. McLeod, 227 Mont. 482, 487, 740 P.2d 672,

675 (1987) (quoting United States v. Kerris, 748 F.2d 610, 614 (11th Cir. 1984))

(alterations in original). This Court held the defendant did not meet his burden of showing

the informant would be a material witness in supporting an entrapment defense and failure

to disclose the identity of the informant did not infringe on the defendant’s constitutional

rights. McLeod, 227 Mont. at 488, 740 P.2d at 675.

¶22    In the Kerris decision we relied on in McLeod, the Eleventh Circuit explained there

are two primary factors in weighing whether the identity of an informant is necessary for a

defendant to prepare his defense. The first is “the extent to which the confidential

informant participated in the criminal activity.” Kerris, 748 F.2d at 613-14. When the

informant plays a “prominent part” in the criminal activity, Roviaro, 353 U.S. at 64,

77 S. Ct. at 629, or “a continuous, active and primary role in the alleged crime,”

Chapman, 209 Mont. at 67, 679 P.2d at 1215, the balance weighs heavily in favor of

disclosure, Chapman, 209 Mont. at 67, 679 P.2d at 1216.             In contrast, “[w]hen an

informant’s level of involvement in the criminal activity is that of minimal participation,

this factor by itself will not compel disclosure.” Kerris, 748 F.2d at 614 (internal quotation

omitted). The second factor “is the directness of the relationship between the defendant’s

asserted defense and the probable testimony of the informant.           Mere conjecture or

supposition about the possible relevancy of the informant’s testimony is insufficient to

warrant disclosure.” Kerris, 748 F.2d at 614. McLeod and its progeny relied on this second

factor to hold defendants had failed to meet their burdens to demonstrate the informants’

                                             11
testimonies were relevant to their asserted defenses.          See, e.g., DuBray, ¶ 113;

State v. Ayers, 2003 MT 114, ¶¶ 55, 59, 315 Mont. 395, 68 P.3d 768; State v. Coates,

233 Mont. 303, 306-07, 759 P.2d 999, 1002 (1988); Babella, 237 Mont. at 315-16, 772 P.2d

at 878.

¶23       The State rightly does not attempt to defend the District Court’s determination

Walston’s due process rights were not violated because the State was not going call the

informant to testify. Rather, it rests its argument on McLeod and its progeny, where the

informant either simply provided information or was present at the criminal transaction but

did not play a primary role in the criminal activity. Unlike the informant in those cases,

the informant in this case played a continuous, active, and primary role in the alleged crime.

“[I]t was evident from the face of the” information the confidential informant “was a

participant in and material witness to the sale.”          Roviaro, 353 U.S. at 65 n.15,

77 S. Ct. at 630 n.15. The testimony of the informant, thus, is relevant to a material issue

in the case. Apart from Walston, the confidential informant was the only eyewitness to

and an active participant in the drug sale itself. While the officers who testified could hear

some of the interaction between the confidential informant and Walston, they could not see

what was happening and cross-examination of the officers was “hardly a substitute for an

opportunity to examine the [woman] who had been nearest to [her] and took part in the

transaction.” Roviaro, 353 U.S. at 64, 77 S. Ct. at 629.

¶24       Despite the informant’s active, continuous, and primary role in the alleged crime,

the State argues Walston has provided only mere conjecture or supposition about the

                                              12
possible relevancy of the informant’s testimony and failed to show the informant’s

testimony would significantly aid in establishing an asserted defense. But Walston has

established the relevancy of the informant’s testimony by virtue of the fact the informant

played a continuous, active, and primary role in the crime with which Walston was charged.

The parties were never in dispute the informant was a continuous, active, and primary

participant in the criminal activity. Thus, the informant’s role in the criminal activity and

ability to provide testimony relevant to a material issue in the case was not mere speculation

or conjecture.

¶25    Balanced against this is the public’s interest in protecting the flow of information.

In Montana, this includes considerations of continuing operational effectiveness of the

informant and whether revealing the identity of the informant would subject her to

“substantial risk.” See § 46-15-324(3), MCA. By the time of Walston’s second trial,

Detective Barnes admitted the confidential informant was no longer working with law

enforcement and had moved out of the area. Therefore, revealing the identity of the

informant would not affect her continuing operational effectiveness. The State also failed

to provide sufficient evidence to demonstrate that revealing the identity of the informant

would create a substantial risk to the informant. The only evidence provided was a single

question posed to Detective Barnes whether revealing the informant’s identity would

“compromise” her safety. There was no testimony or evidence presented, however, to




                                             13
support this conclusion.1       The State offered no evidence Walston had engaged in,

encouraged, or threatened violence in the past; any of Walston’s known associates engaged

in violence; or even general evidence regarding the violent nature of the drug trade in

Park County. See Babella, 237 Mont. at 314-15, 772 P.2d at 877-78. This single question

with an affirmative response is wholly insufficient to demonstrate revealing the informant’s

identity would place her at substantial risk as required under § 46-15-324(3), MCA,

especially when balanced against the relevance of the testimony the informant could

provide as an eye witness to and a participant in the alleged criminal activity.

Compare McLeod, 227 Mont. at 487-88, 740 P.2d at 675 (noting that the deputy sheriff

had “explained how disclosure of the identity of the informant would interfere with the

informant’s continued operational effectiveness”); Babella, 237 Mont. at 314-15,

772 P.2d at 877-78 (reciting testimony from law enforcement officers that informants’

safety was at risk because the defendant had made threats against the informants, nine guns

had been found in her residence, and the defendant’s boyfriend was “in the habit of using

violence for enforcement”).

¶26    This is not to say that any time an informant and the accused are the only two

persons present during an alleged drug exchange, the informant’s identity must be revealed.




1
  Further undermining this argument, the State posited in its briefing before this Court that Walston
may have known the identity of the confidential informant by the time of the second trial based on
her attorney’s detailed cross-examination of the officers. The State, thus, takes the incongruous
position on appeal that Walston knew the identity of the confidential informant and yet the
informant’s safety may be jeopardized if the State revealed the identity of the informant to
Walston.
                                                14
But   here,    considering    all   “the   particular   circumstances”     of   the   case,

Roviaro, 353 U.S. at 62, 77 S. Ct. at 629, including the relevance of the testimony from the

confidential informant as an eye witness to and participant in the alleged criminal

activity—in fact, the only eye witness and participant other than Walston—balanced

against the meager record provided of the public’s interest in withholding the confidential

informant’s identity, the District Court erred in denying Walston’s motion to compel

disclosure of the informant’s identity. We reverse and remand the case.

                                      CONCLUSION

¶27    The District Court’s order denying Walston’s petition to disclose the identity of the

confidential informant is reversed.    Walston’s conviction is vacated and the case is

remanded for further proceedings consistent with this Opinion. If the State declines to

disclose the identity of the confidential informant to Walston, the District Court must

dismiss the charges against her.


                                                 /S/ INGRID GUSTAFSON

We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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