from the Vigo Superior Court 6, No. 84D06-1411-F6-2855 The
Honorable Michael J. Lewis, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
Attorney for Appellant Cara Schaefer Wieneke Wieneke Law
Office, LLC Brooklyn, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Chandra K. Hein Jodi Kathryn Stein Deputy
Attorneys General Indianapolis, Indiana
State told Marvin Beville it had a video recording of a
controlled drug buy between him and a confidential informant.
But while the State offered Beville's public defender the
opportunity to review the recording in the prosecutor's
office, it would not allow Beville himself to see the video.
Beville accordingly requested a copy of the recording, to no
avail. His counsel then filed a motion to compel and argued
that Beville's personal review of the video was
fundamental to preparing a defense. The State responded that
the informer's privilege entitled it to withhold
disclosing the recording. The trial court agreed with the
State, and Beville took this interlocutory appeal.
acknowledge that when the informer's privilege is
properly invoked, the defendant bears the burden to
demonstrate an exception to the privilege-otherwise,
disclosure of the requested discovery is not warranted. But
it is incumbent on the State to establish that the
informer's privilege applies in the first instance. We
conclude the State failed to make that threshold showing
because it is unclear whether the video would actually reveal
the informant's identity. And even if the State had made
the threshold showing, we find that Beville carried his
burden of proving an exception to the privilege because his
review of the video was relevant and helpful to his defense.
We thus reverse the trial court.
and Procedural History
State accused Marvin Beville of selling marijuana to a
confidential informant ("CI") and charged Beville
with dealing in marijuana and maintaining a common nuisance.
At some point, the State informed Beville it had a video
recording of a controlled buy between him and the CI.
initial hearing, the trial court ordered discovery pursuant
to a local rule. Vigo Cty. LR84-CR00-5 (2014). Under that
rule, a defendant must specifically request a copy of video
evidence; the State must provide the recording for
examination and copying at "reasonable" times and
places; and the trial court may deny disclosure of a CI's
identity if it finds a "paramount interest in
after the initial hearing, the State provided discovery. The
discovery did not contain the identity of the CI or the
recording of the alleged controlled buy, but the State
offered to let Beville's public defender review the video
at the prosecutor's office.
counsel then attempted, multiple times, to obtain a copy of
the video to review with Beville. He first filed a motion
asking for copies of, among other items, all "video
tapes . . . which the State of Indiana may use in the
prosecution of this matter." The trial court ordered the
State to comply with the discovery request. After not
receiving a copy of the recording, Beville's counsel
filed a motion to compel, asking for "any video of
alleged hand to hand buy with the confidential
day of the motion to compel hearing, the defense filed an
application to obtain a copy of the video. The application
asserted that the State intended to use the recording as
evidence at trial but would not allow defense counsel to have
a copy to review with Beville. At the hearing, defense
counsel emphasized that the trial was going to begin in eight
days, that the State would likely use the video in lieu of
the CI's testimony, and that having a copy of the video
was therefore "fundamental to our preparation." He
also argued that the video may not reveal the CI's
identity because the camera was most likely pointed at the
target of the investigation-not at the CI.
response, the State claimed that the informer's
privilege, and the general policies underlying it, allowed
withholding the identity of the CI and any item that would
identify the CI. The State elaborated that the privilege
ensures individuals come forward with information to assist
law enforcement and that "disclosure would only serve to
make the CI the target for reprisal from those upset by the
investigation." The State also asserted that the
CI's identity would, in fact, be revealed through the
audio and video of the controlled buy.
trial court denied Beville's motion to compel but did not
issue written findings of fact or conclusions of law. On
interlocutory appeal, the Court of Appeals affirmed the trial
court in a split ...