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00-3257 State v. Vanmanivong

By: dmc-admin//October 29, 2001//

00-3257 State v. Vanmanivong

By: dmc-admin//October 29, 2001//

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However, we affirm the three convictions which were unrelated to the informants’ identification.

“The trial court had no authority under sec. 905.10(3)(b) to seek, ex parte, additional clarification from law enforcement. When the trial court found that the affidavits were unsatisfactory or insufficient to resolve the issue at hand, the next step under sec. 905.10(3)(b) would have been to conduct an in camera hearing to take testimony from the confidential informants to determine the competency, relevancy and admissibility of these witnesses’ testimony. …

“The trial court must hold an in camera hearing and take the testimony of the two confidential informants regarding the identity of ‘Shorty’ and the identity of the individual who sold drugs to the undercover officers. The trial court’s only duty is to determine whether the confidential informants’ testimony is relevant and admissible with respect to an issue material to Vanmanivong’s defense, not weigh the evidence or determine what may or may not be helpful to Vanmanivong.

“If the trial court determines that the confidential informants’ testimony is not relevant and admissible with respect to an issue material to Vanmanivong’s defense, the trial court may reinstate the judgments of conviction. If, however, the trial court determines that the confidential informants’ testimony is relevant and admissible, the confidential informant privilege ceases and Vanmanivong is entitled to a new trial on these five counts. The state can then decide whether to disclose the confidential informants’ identities and proceed with a new trial, or ask the trial court to dismiss these five charges.”

Affirmed in part, reversed in part and remanded.

Recommended for publication in the official reports.

Dist II, Sheboygan County, Stengel, J., Snyder, J.

Attorneys:

For Appellant: John J. Grau, Waukesha

For Respondent: Robert J. Wells Jr., Sheboygan; Christian R. Larsen, Madison

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