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Nielsen v. State

Supreme Court of Utah

November 18, 2016

Kyler Nielsen, Appellant,
v.
State of Utah, Appellee.

         On Direct Appeal Fourth District, Provo Dep't The Honorable David N. Mortensen No. 131402457

          Margaret P. Lindsay, Douglas J. Thompson, Provo, for appellant.

          Sean D. Reyes, Att'y Gen., John J. Nielsen, Salt Lake City, for appellee.

          Justice Durham authored the opinion of the court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Pearce joined.

          OPINION

          DURHAM, JUSTICE

         INTRODUCTION

         ¶1 In this criminal case, the State claimed a privilege under rule 505 of the Utah Rules of Evidence to refuse to disclose the identity of a confidential informant. Rule 505 provides that if the State exercises this privilege in a case where the district court determines that there is a reasonable probability that the informant can give testimony necessary to a fair determination of the issue of the defendant's guilt or innocence, the court must dismiss the charges associated with this testimony.

         ¶2 We must decide in this appeal whether the district court applied the correct legal standard when it ruled that rule 505 did not require the dismissal of the charges against the defendant. Relying upon an opinion of this court that applied a prior version of the current rule 505, the district court used a three-factor balancing test. But the defendant argues that rule 505 required the court to consider only one factor: whether the confidential informant could provide testimony necessary to his defense.

         ¶3 We agree with the defendant that the district court applied the wrong legal test. The plain language of rule 505 requires the district court to consider only the necessity of the confidential informant's likely testimony to a fair determination of the guilt or innocence of the defendant. We therefore reverse and remand for further proceedings.

         BACKGROUND

         ¶4 A confidential informant told a Utah County officer that M.G. was selling the drug ecstasy and that she had plans to travel to a rave with friends. Based on this information, officers pulled over a vehicle driven by M.G. Kyler Nielsen was one of four passengers in the vehicle. Officers searched the vehicle and discovered ecstasy pills in the center console, in a cargo compartment behind one of the seats, and in a backpack located in the rear passenger compartment. Mr. Nielsen admitted that the backpack was his, but claimed that the ecstasy belonged to M.G. The State charged Mr. Nielsen with possession of a controlled substance.

         ¶5 Mr. Nielsen moved to compel the State to reveal the confidential informant's name, address, and telephone number, as well as other information about the informant. Invoking rule 505 of the Utah Rules of Evidence, the State opposed the motion to compel. Rule 505 grants the State the "privilege to refuse to disclose the identity of an informer, " unless the informer's identity has already been disclosed or the informer appears as a government witness. Utah R. Evid. 505(b), (d). But if the State invokes this privilege and there is a "reasonable probability" that the informer can "give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case, " the district court "shall dismiss the charges to which the testimony would relate." Utah R. Evid. 505(e)(1)-(2).

         ¶6 The district court elected under rule 505(e)(1) to conduct an in camera interview to determine whether the informant possessed knowledge relevant to Mr. Nielsen's guilt or innocence. But the interview never took place. An officer claimed that the informant refused to participate in the interview because M.G. had threatened on social media that the informant would be hurt if discovered.

         ¶7 After the informant refused to appear, the district court concluded that rule 505 did not require it to dismiss the charges against Mr. Nielsen. Relying upon this court's opinions in State v. Forshee, 611 P.2d 1222 (Utah 1980) and State v. Nielsen, 727 P.2d 188 (Utah 1986), the court applied a three-factor balancing test, weighing (1) "the defendant's need for disclosure in order to prepare a defense, " (2) "the potential safety hazards to the persons involved, " and (3) "the public interest in preserving the flow of information from informants." Nielsen, 727 P.2d at 193. Considering the ...


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