Taylor v. State
Taylor v. State
Opinion of the Court
1. "The fact that the informant is a witness is not controlling where such evidence is not necessary to obtain a conviction. United States Ex Rel. Abbot v. Twomey, 460 F2d 400,402 (2). In Roviaro v. United States, 353 U. S. 53, 62 (77 SC 623,11 LE2d 639), it is stated: 'We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.’ ” Estevez v. State, 130 Ga. App. 215, 216 (2) (202 SE2d 686). See also, Welch v. State, 130 Ga. App. 18, 19 (3) (202 SE2d 223).
2. Where a person merely takes an undercover police officer to a location and identifies, or introduces the officer to the defendant, and the officer arranges for and buys contraband from the defendant, and the person witnesses such sale, or alleged sale, such person is an informer and not a "decoy” and a disclosure of his name, address, etc., to the defendant is not required as a matter of law under Code § 38-1102, but rests in the discretion of the trial
4. Where, under the circumstances disclosed in Division 3 above, a motion for disclosure is made by the defendant prior to trial and the defendant’s only asserted defense at the hearing on the motion is that he was not the person making the alleged sale, in effect a defense of mistaken identity, we cannot say the trial court abused its discretion in overruling the defendant’s motion for disclosure. Compare Lopez-Hernandez v. United States, 394 F2d 820, supra.
Judgment affirmed.
The defendant was charged in a four-count indictment with violation of the Georgia Drug Abuse Control Act and the Georgia Uniform Narcotics Drug Act, involving the possession, sale and distribution of marijuana and cocaine. Upon arraignment, the defendant pled not guilty and filed his motion for disclosure of the identity of an informant or decoy, the motion alleging his name and identity were unknown and that he participated in the purchase of the marijuana and cocaine by a G. B. I. Agent and that the defendant needed the name, address and other identity so he could have the unknown as a witness "to establish affirmative defenses.” On the hearing, defendant’s attorney stated the defendant took the position that no such transaction as charged took place, that defendant never "sold drugs to anybody” and had no defense "other than that,” as he did not remember where he was on the day the crime was charged to have been committed, and could not establish an alibi. And when the court inquired if defendant claimed entrapment, the following colloquy occurred: Defendant’s attorney: "Well, your honor, we don’t have sufficient facts to do so.” The Court: "You can’t claim entrapment unless you admit he sold it, and also that he only sold it because he was entrapped, that’s the only way.” Defendant’s attorney: "We are not admitting that he made the sale, but at the same time, we would like to be able to discuss with these two [sic] other witnesses some facts in the case, and in the event they testify to that, we might have the affirmative defense of entrapment. Now, we have no defense whatsoever, we are left at the mercy of these agents, except that we deny that the transaction took place.”
The only evidence offered at the hearing was the testimony of a Georgia Bureau of Investigation undercover agent. He testified that on the day in question he received information from the G. B. I. Headquarters that a Detective Black of the Catoosa County Sheriffs Department had two informers that would "work drugs” for the officers, at which time the witness made an
We are not here concerned with clear cases where the informer has no connection with the occurrence constituting the crime charged (Hodges v. State, 98 Ga. App. 97, 105 (7) (104 SE2d 704); Anderson v. State, 72 Ga. App. 487 (4) (34 SE2d 110)) or as to exigent circumstances surrounding a search and seizure (Scull v. State, 122 Ga. App. 696 (178 SE2d 720)), but with those cases where the informer is at least a witness or present, or more, as to the occurrence charged as a crime.
The older and more recent decisions of this court are in hopeless conflict. It is our opinion the older cases should be overruled. The more recent cases are those cited in Headnote 1, above. The older cases are Crosby v. State, 90 Ga. App. 63 (82 SE2d 38); Roddenberry v. State, 90 Ga. App. 66 (82 SE2d 40), and Smallwood v. State, 95 Ga. App. 766 (1) (98 SE2d 602). In Butler v. State, 127 Ga. App. 539, 540 (2) (194 SE2d 261) these cases were distinguished in the following language: "Thus in the cited cases, and the cases upon which they rely, the 'decoy’ took an active part in the offense by acting as the purchaser in an illegal sale of liquor, opium, or counterfeit currency, for which transactions the seller was prosecuted, rendering the 'decoy’ a material witness to the offense charged.” That distinction was again made (following Butler v. State) in Welch v. State, 130 Ga. App. 18, 19 (3), supra. If these earlier cases are not so distinguishable then there is a conflict between these earlier decisions and Butler v. State, 127 Ga. App. 539, supra, Welch v. State, 130 Ga. App. 18, supra, and Estevez v. State, 130 Ga. App. 215, supra, and we are faced with either following the absolute rule of the older cases or overruling them. We have examined these older cases, both the opinions as written and the records in the cases, and find that no such distinction exists in two of the cases, and in all probability in the third.
The headnote in Crosby v. State, 90 Ga. App. 63, supra, reads as follows: "While as a general rule, applicable in this State, a law-enforcement officer will
In deciding the Crosby case, this court followed federal cases where the so-called informer himself actually made the purchase of the contraband. An examination of the record in the Crosby case discloses that the undercover police officer accompanied the informer to the place where the officer could buy the nontax-paid whisky, but the informer took no part in the purchase thereof. The whole opinion in the case of Roddenberry v. State, 90 Ga. App. 66, supra, reads as follows: "The assignment of error in the sole special ground of the motion for new trial, that the defendant’s right of cross-examination was abridged by the trial court’s
The material part of the opinion in Smallwood v. State, 95 Ga. App. 766, supra, reads as follows: "The assignments of error in the first three amended grounds of the motions for new trial complain that the defendant’s right to a thorough and sifting cross-examination was abridged by the trial court’s refusal to require the State Revenue Agent to divulge the name of the 'decoy’ who accompanied him to the defendant’s home for the purpose of purchasing liquor. That this is reversible error has been settled in Crosby v. State, 90 Ga. App. 63 (82 SE2d 38), and Roddenberry v. State, 90 Ga. App. 66 (82 SE2d 40).” An examination of the record in that case discloses that the trial judge could have found the informer did not purchase the whisky but acted merely as a guide and accompanied the undercover agent to the premises, or could, on the contrary, have found the informant assisted in the purchase; however, in a colloquy with counsel in arguing this very question, the trial judge expressed his opinion that the police officer testified he alone made the purchase of the whisky. We assume his ruling was based thereon. We conclude, therefore, that Crosby v. State, 90 Ga. App. 63, supra, Roddenberry v. State, 90 Ga. App 66, supra, and Smallwood v. State, 95 Ga. App. 756, supra, are not distinguishable for the reasons given in Butler v. State, 127 Ga. App. 539, supra, and Welch v. State, 130 Ga. App. 18, supra, and being older decisions should be followed unless overruled. It is our opinion, however, that the more recent cases set forth the better rule and that not only should Crosby and Roddenberry be overruled but Smallwood as well, as all of them purport to postulate an absolute rule applicable to such situations.
The court, in Soles, then quoted from Roviaro v. United States, supra, the identical quotation therefrom as appears in Headnote 1 of this opinion. See also, United States v. Simonetti, 326 F2d 614, 616; United States v. Fredia, 319 F2d 853, 854. This more liberal rule was also again approved in Welch v. State, 130 Ga. App. 18, 19 (3), supra.
We, therefore, conclude that the more liberal rule permitting the court to exercise its discretion under all the facts and circumstances is better than an absolute rule which requires the disclosure of the informer’s name once he steps outside of the role of a strict informer by participating in some manner in the sale and purchase of the contraband, even if it be only as a witness. We, hereby, overrule Crosby v. State, 90 Ga. App. 63, supra,
Reference
- Full Case Name
- TAYLOR v. State
- Cited By
- 1 case
- Status
- Published