Opinion
01-10337
February 26, 2003
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO RECONSIDER DEFENDANT'S MOTION FOR INFORMANT INFORMATION
In April 2001, a Grand Jury indicted the defendant, Celestina Lockett ("Lockett") on charges of trafficking in cocaine over 28 grams (001), distribution of a Class D controlled substance (004), conspiracy to violate the controlled substances laws (003), distribution of controlled substances in, on, or near school property (002 and 005).
On January 9, 2002, this Court denied Lockett's Motion for Informant Information, on the ground that the informant whose identity Lockett sought was not a precipiant witness to the charged conduct and that the Commonwealth did not intend to introduce evidence of any uncharged alleged misconduct by Lockett. This case is now before the Court on Lockett's Motion to Reconsider its January 9, 2002, decision.
BACKGROUND
In December 2000 and January 2001, a confidential informant ("the informant") assisted the Boston Police Department's Drug Control Unit by making four controlled buys at 25 Wayne Street, Apartment #9, in Roxbury, Massachusetts. On the first controlled buy, the informant stated that it purchased drugs from a pregnant black female who was five feet, six inches tall, weighed between one hundred thirty and one hundred fifty pounds, and had curly, shoulder-length hair. On the second occasion, the informant stated that it purchased drugs from a dark-skinned black female with black hair who was five feet, seven inches tall and weighed two hundred fifty pounds. On both the third and fourth occasions, the informant stated that it purchased drugs from a seventeen to twenty-two year old black male with black hair who was five feet, seven or five feet, eight inches tall and weighed one hundred forty-five pounds.
This information was contained in an affidavit submitted in support of a search warrant for 25 Wayne Street, Apartment #9, in Roxbury, Massachusetts, that was issued on January 15, 2001. When the police officers executed the search warrant, Lockett was one of the individuals the police arrested at the apartment. At the time of her arraignment on January 22, 2001, Lockett was pregnant, five feet, five inches tall, weighed two hundred pounds, and had black hair that did not go below her neck. Lockett alleges that the informant's identity is necessary as its testimony is relevant to her defenses.
DISCUSSION
The Commonwealth has a privilege not to disclose the identity of an informant. Commonwealth v. Douzanis, 384 Mass. 434, 441 (1981); Commonwealth v. Nelson, 26 Mass. App. Ct. 794, 797 (1989). This privilege is not absolute, however, and must "give way" in certain situations. Id. One such situation is "[w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused . . . .'" Nelson, 26 Mass. App. Ct. at 797, quoting Roviaro v. United States, 353 U.S. 53, 60-61 (1957). In this case, Lockett asserts that the informant's anticipated testimony would be relevant and helpful to her defense because it would support her assertion that she was merely present in the apartment on the day of her arrest, that it would show that she was not present in the apartment at the time of any of the earlier controlled buys, and it would rebut any suggestion of conspiracy between her and the two co-defendants.
In determining whether to order the disclosure of an informant's identity, the court must balance "`the public interest in protecting the flow of information against the individual's right to prepare his defense.'" Id., quoting Roviaro, 353 U.S. at 62. Among the factors the court can take into consideration are "`the crime[s] charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.'" Id. at 797-798, quoting Roviaro, 353 U.S. at 62. The charges against Lockett relate to her alleged distribution of and trafficking in controlled substances in, on, or near school property, as well conspiracy. All of the charges against Lockett involve elements of knowledge or intent.
Lockett's possible defenses include that she was merely present in the apartment, that she had no dominion or control over the drugs, and that she was not aware of the drugs' presence in the apartment. Relevant to these defenses is the informant's testimony or a stipulation by the Commonwealth that Lockett was not one of the three individuals described in the search warrant affidavit and that the informant had never seen Lockett at the apartment. As in Nelson, "[a]t the very least, . . . this evidence would help create a reasonable doubt in the minds of a jury with respect to" Lockett's guilt. 26 Mass. App. Ct. at 798.
Accordingly, the defendant's motion for reconsideration is ALLOWED , and upon reconsideration, the Commonwealth is ordered to provide Lockett with the identity of the confidential informant. Alternatively, the Commonwealth may stipulate, if true, that Lockett was not one of the three individuals from whom the informant bought drugs on prior occasions, and that the informant never saw Lockett at the apartment.
___________________________ Peter M. Lauriat, J. Justice of the Superior Court
DATED: February 26, 2003