COMMONWEALTH OF KENTUCKY

WOODFORD CIRCUIT COURT

CRIMINAL BRANCH

1ST DIVISION

COMMONWEALTH OF KENTUCKY PLAINTIFF

VS. NO. ______

MOTION TO COMPEL IDENTITY OF

INFORMANT(S) AND FOR DISCOVERY

______DEFENDANT

** ** ** ** ** **

The Defendant, by counsel, respectfully requests, pursuant to the authorities cited below, that the Court direct the Commonwealth to provide certain information in the possession, custody or control of the Commonwealth which the defendant contends is material to the preparation of his defense. The defendant moves this Court pursuant to RCr 7.24, as well as the Sixth and Fourteenth Amendments to the United States Constitution, to order the Commonwealth to disclose in writing the existence of, and permit defense counsel to inspect and copy or photograph, the following relevant materials:

1. Pursuant to Brady v. Maryland, 373 U.S. 83, 83S.Ct 1194, 10 L.Ed.2d 215 (1963) and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed2d 481 (1985), the defendant requests any and all evidence in possession of the Commonwealth or in the possession of any governmental agency that might be termed “favorable” in the sense that it might be fairly used by the defendant to impeach the credibility of the confidential informant (CI), whose cooperation lead to the above-captioned indictment. Specifically, the defendant requests the following:

a. The identity of the CI used in this case, whether or not the Commonwealth intends to call him to testify. The disclosure of the identity of a material witness who participates in or observes a criminal transaction is necessary. Burks v. Com., 471 S.W.2d 298 (Ky. 1971). When an informer participates in or places himself in the position of observing a criminal transaction, he ceases to be merely a source of information and becomes a witness and the Commonwealth is required to disclose his identity. Id.at 301.

According to discovery provided thus far in this case, the CI placed himself in the position of being part of the alleged trafficking. The disclosure of the informant is therefore necessary to a fair determination of guilt or innocence.

Also, disclosure will be helpful to the defendant. The CI in this case may lack credibility. The CI may have supplied information to law enforcement in the past that turned out to be inaccurate. The CI may have problems with his vision, memory, etc., and may be biased against the defendant. Without knowing the identity of the informant it will be impossible for the defense to investigate such possibilities.

b. The nature and substance of any agreement, immunity promise or understanding, between the government or any agent thereof, and any witness, relating to the witness’ expected testimony, including but not limited to, understandings or agreements, relating to pending or potential prosecutions. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

c. The nature and substance of any preferential treatment given at any time by any Commonwealth agent, whether or not in connection with this case, to the CI, including, but not limited to, letters from Commonwealth Attorneys or other enforcement personnel to governmental agencies, state agencies, creditors, etc., setting out that witness’ cooperation or status with the Commonwealth, since such a communication might fairly be said to have been an attempt to provide some benefit or help to the witness.

d. Any money or remuneration paid to the CI by the Commonwealth, including but not limited to, rewards, subsistence payments, expenses, or other payments made for specific information supplied to the Commonwealth.

e. Whether the CI was on parole, probation, or conditional discharge for a felony, misdemeanor, or violation at the time the alleged offense occurred or during the pendency of this case. See Commonwealth v. Cox, 837 S.W.2d 898 (Ky. 1992).

f. Prior convictions of the CI, as well as any criminal charges, indictments, or information pending against prosecution witnesses. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, (1974).

2. In support of this motion, the defendant states that discovery of this evidence is mandated by the state and federal constitutions, as well as RCr 7.26, that disclosure of the evidence requested is material to the preparation of the defense, and that disclosure of evidence the Commonwealth intends to introduce at trial is in the interest of the orderly administration of justice and necessary to enable the defendant to challenge the admissibility of the evidence by pretrial motion pursuant to RCr 8.16.

WHEREFORE, the defendant respectfully requests that the Court order the Commonwealth to make prompt and complete disclosure of the foregoing discoverable evidence.

Respectfully submitted,

______

RUSSELL J. BALDANI

BALDANI, ROWLAND & RICHARDSON

300 W. Short Street

Lexington, KY 40507

(859) 259-0727

NOTICE

Please take notice that the foregoing shall come on for a hearing on the 6th day of February, 2013 at 9:30 a.m., or as soon thereafter as counsel may be heard.

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing was served by hand delivery upon Hon. Keith Eardly, Assistant Commonwealth Attorney, 187 S. Main Street, Versailles, KY 40383, on this the 5th day of February, 2013.

______

RUSSELL J. BALDANI

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