STATE OF NEW JERSEY v. RASHEEM WHITE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3100-12T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASHEEM WHITE,

Defendant-Appellant.

__________________________________

October 15, 2014

Submitted October 7, 2014 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-11-1402.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an October 12, 2012 order entered on remand denying his motion to disclose the identity of a confidential informant (CI) pursuant to State v. Milligan, 71 N.J. 373 (1976). We affirm.

Defendant was convicted of passion/provocation manslaughter, N.J.S.A. 2C:11-4b(2); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4; third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. The judge imposed an aggregate prison term of twenty-six years with twenty years and three months of parole ineligibility.

After the verdict and before sentencing, an assistant prosecutor discovered a one-page police report written by a detective stating that he received a statement from a CI indicating that the "rumor in the streets" was that someone other than defendant had shot the victim. The assistant prosecutor produced the report to defense counsel, who moved for a new trial based on an alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The trial judge denied the motion.

Defendant moved to compel the State to disclose the identity of the CI. The judge denied that motion without performing a Milligan analysis. Defendant appealed his convictions contending in part that the trial judge erred by denying his motion for the CI's identity. Defendant maintained in that appeal that further investigation could have shown that the CI's statement to the detective was trustworthy enough to order a new trial under Brady.

We affirmed the convictions and sentence, but remanded for the judge to determine whether to disclose the identity of the CI pursuant to Milligan. State v. White, No. A-3967-09 (App. Div. March 28, 2012) (slip op. at 2, 12-14). The judge performed a Milligan analysis by balancing the "public interest in protecting the flow of information against [defendant's] right to prepare his defense," and entered the order under review. Milligan, supra, 71 N.J. at 384 (citation and internal quotations omitted).

On appeal, defendant makes the following argument

THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT THE STATE WAS NOT REQUIRED TO DISCLOSE THE CI'S IDENTITY.

"The appropriate standard for reviewing the denial of a motion for disclosure is to determine whether the trial court abused its discretion after weighing the competing considerations of the balancing test." Ibid. Against this standard, we see no error.

The State is permitted to withhold the identity of a CI who furnishes law enforcement with information pursuant to a well-established testimonial privilege known as the informer's privilege. McCray v. Illinois, 386 U.S. 300, 308-09, 87 S. Ct. 1056, 1061, 18 L. Ed. 2d 62, 69 (1967) (citing 8 Wigmore on Evidence 2374 (McNaughton rev. 1961)). The Legislature codified this common law privilege in N.J.R.E. 516 and N.J.S.A. 2A:84A-28.1

"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.'" Milligan, supra, 71 N.J. at 381 (quoting Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 627, 1 L. Ed. 2d 639, 644 (1957)). The informer's privilege therefore encourages CIs to provide important information to the police that can only be obtained on a confidential basis. State v. Oliver, 50 N.J. 39, 42 (1967).

The informer's privilege is not absolute and is limited by its underlying purpose. Roviaro, supra, 353 U.S. at 60, 77 S. Ct. at 626, 1 L. Ed. 2d at 644; see also Milligan, supra, 71 N.J. at 383-84 (identifying circumstances when the privilege is inapplicable). When determining whether disclosure of a CI's identity is appropriate, a court is required to undertake the Milligan balancing test. Milligan, supra, 71 N.J. at 384.

In performing this balancing test, the court must analyze the particular circumstances of each individual case, taking into consideration such factors as the crime charged, the possible defenses, and the possible significance of the CI's testimony. Ibid. The court must also critically examine the harm to the safety of the CI if disclosure is ordered, but such danger cannot surmount the imperative of a fair trial. State v. Florez, 134 N.J. 570, 582 (1994). The party seeking disclosure must demonstrate a strong showing of need. See Milligan, supra, 71 N.J. at 387.

Here, the judge weighed the competing considerations of the balancing test and correctly found that defendant had not made the strong showing required to compel disclosure of the CI's identity. Disclosure of the CI's identity would not have assisted the defense, and could have placed the CI at risk of harm. The judge properly characterized the CI's statement to the detective as speculative.

Defendant maintains that the CI's statement is possibly exculpatory because the CI named another apparent shooter of the victim. The CI acknowledged, however, that the report was based on a rumor. The CI had no personal knowledge of the shooting, was incarcerated at the time of the killing, and provided no details which would have indicated that the rumor was credible. "Most courts have found that the possibility that an informer's testimony might establish a defense of mistaken identity is too speculative to warrant disclosure." Id. at 391. Thus, the judge recognized that the CI's statement amounted to conjecture.

The State, on the other hand, presented strong evidence at trial that defendant was the perpetrator. An eyewitness, who was at the scene on the night of the shooting, gave the police a statement identifying defendant as the shooter, less than one month after the incident. The trial judge conducted a Gross2 hearing, determining that the witness' statement was reliable and admitted it into evidence. A woman who witnessed the shooting from a nearby window also testified that defendant shot the victim in the back. She gave this testimony even though she was scared that she would be harmed. Additionally, the State produced testimony from defendant's cell mate who said that defendant admitted to shooting the victim.

Affirmed.

1 N.J.R.E. 516 and N.J.S.A. 2A:84A-28 both provide

A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.

2 State v. Gross, 121 N.J. 1 (1990).