Bannister v. State

Citation202 Ga.App. 762,415 S.E.2d 912
Decision Date29 January 1992
Docket NumberNo. A91A2132,A91A2132
PartiesBANNISTER v. The STATE.
CourtUnited States Court of Appeals (Georgia)
Sonya J. Calhoun, Perry, for appellant

Edward D. Lukemire, Dist. Atty. and P. Dee Brophy, Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

Charles Bannister appeals his judgment of conviction of sale of cocaine and sentence. He enumerates three errors. Held:

1. Appellant asserts the trial court erred by not holding an in camera inspection to determine the materiality of the confidential informant and by failing to reveal the identification of the informant. Pretermitting the question of in camera inspection is the question of whether the operative facts of this case show without the benefit of such inspection that the identification of the informant need not be revealed.

(a) Appellant timely filed a motion for in camera examination to determine materiality of the confidential informant and disclosure of the confidential informant. This motion inter alia asserts that "defendant believes the informant(s) may have seen or possess exculpatory information"; "defendant believes the testimony of the informant(s) is relevant and would aid in defendant's defense"; and, "defendant further relies on United States v. Roviaro, [Roviaro v. United States ], 353 U.S. 53 [77 S.Ct. 623, 1 L.Ed.2d 639] and Moore v. State, 187 Ga.App. 387 (370 S.E.2d 511)." Appellant also filed a timely motion to produce in which he moved inter alia to obtain access to or copies of "any and all evidence ... which would tend either to negate [his] alleged guilt ... as to the offenses charged, or which would tend to reduce the punishment...." The substance or function of these motions, which is controlling over nomenclature (State v. Allen, 192 Ga.App. 730, 734 (386 S.E.2d 394), is to incorporate a Brady motion into the motion for in camera inspection and confidential informant identification disclosure. In Thornton v. State, 238 Ga. 160, 231 S.E.2d 729, cert. den. 434 U.S. 1073, 98 S.Ct. 1260, 55 L.Ed.2d 778 "the disclosure was being sought pursuant to a Brady motion. In disposing of the issue, the Supreme Court first distinguished between a 'decoy' or 'informer-participant' (a person used to obtain evidence), and 'informer-witness' (a person used to establish facts upon which to base a prosecution), and a 'mere tipster' (one who provides information about criminal activity). [Cit.] After noting that both Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 and Roviaro had a common basis of 'fundamental fairness to the accused,' the court concluded that they must be read together where the question is disclosure of the identity of an informer-witness or informer-participant 'if material to the defense on the issue of guilt or punishment.' [Cit.] If such an informer's identity is required to be disclosed under Brady, the trial court should then apply the Roviaro balancing test. [Cit.]" Moore, supra 187 Ga.App. at 389, 370 S.E.2d 511, citing extensively Thornton, supra. TheRoviaro balancing test as restated for clarity in Thornton, supra 238 Ga. at 164, 231 S.E.2d 729 provides "that the due process concept of fundamental fairness require[s] that the public interest in protecting the flow of information to law enforcement officials be balanced against the right of the accused to a full and fair opportunity to defend himself." The court may consider any factor operative in the particular case before it which is relevant to the application of this balancing test, and all relevant evidence contained in any pretrial, trial and post-trial proceedings. Walton v. State, 194 Ga.App. 490, 491 (1), 390 S.E.2d 896 (can consider factor that a witness cannot reasonably be expected to appear in court and incriminate himself).

(b) In this case, the trial court initially ordered the State to have the confidential informant present for an in camera proceedings to determine the materiality of his testimony; however, the witness did not appear as scheduled. The trial court promptly conducted a full pretrial hearing during which law enforcement officials testified that they had made various attempts to contact the confidential informant but his whereabouts was unknown, and that he was believed to have left the area as a warrant for probation violation had been issued and was outstanding. The officers also testified that if the outstanding warrant problem could be solved the highly reliable informant was expected to continue to work for them so that it was necessary in their view to continue to protect his identity. The trial court denied appellant's motion for a continuance to attempt to locate the informant and the case proceeded to trial. At trial the undercover officer testified that appellant sold him the cocaine. The officer further testified to his prior photographic line-up identification of appellant and made an in-court identification as well. Appellant asserts that the informant was the sole person who could support his defense of misidentification. Appellant argues that this defense was reasonably raised by attacking the validity of the undercover officer's identification of appellant as the person who had sold the As the record reflects that the confidential informant failed to appear for an in camera hearing through no fault of either the State or appellant, we elect in the interest of fundamental fairness to accept for purposes of this appeal that the testimony of the informant would have been material under Brady thereby requiring application of the Roviaro balancing test so as to weigh, using the above-discussed test, "the materiality of the informer's identity to the defense against the state's privilege not to disclose his name under Roviaro." (Emphasis supplied.) Thornton, supra 238 Ga. at 165(2), 231 S.E.2d 729. Further, by conceding for purposes of this appeal that the informant's testimony would meet the Brady materiality test, the issue of denial of an in camera hearing to establish this materiality issue is rendered moot.

                cocaine during cross-examination of State's witnesses.  Appellant did not testify in his own behalf and called no defense witnesses.  After trial, a hearing was held on appellant's motion for new trial.  At this hearing the trial court expressed its concern as to the sufficiency of the procedure used and stated it was prepared to hold the record open until it found out the identity of the confidential informant, "where he was and if he's in [202 Ga.App. 764] town, what happened and why he wasn't here."   The State indicated it could provide this information if the court will hold the record open.  The record does not reveal, as observed by the trial court, that the State engaged in any improper conduct regarding the appearance of the informant.  (Nor do we find that the record reflects any improper conduct on the part of the police;  rather the record uncontrovertedly reflects that notification of the informant of the outstanding warrant occurred one day before the detective was requested to produce the informant for the hearing.)   Thereafter, the trial court modified its position at the motion for new trial hearing by stating it would just like the record to reflect why the informant decided to leave when he did "if not necessarily the name of the C.I."   The record was not further supplemented
                

We recognize that "[i]n most instances, where the information is material under Brady, it will also be required under Roviaro. But this may not always be so and to do otherwise is to abrogate entirely the state's privilege whenever a Brady issue is successfully raised by the defendant." Thornton, supra. Thus, it becomes essential to preserve the distinction between Brady and Roviaro requirements.

"One of the factors important in [applying the Roviaro balancing test] will be the type of informer involved." Thornton, supra 238 Ga. at 165, 231 S.E.2d 729. The confidential informant was neither a "mere tipster" nor a "decoy" who acted to consummate the sale in lieu of the police. Neither, in the attendant circumstances, was he just an "informer-witness," who was used only to introduce the officer to appellant and who thereafter remained passively present at the crime scene a mere witness to that which occurred. Rather the uncontroverted testimony by the police detective monitoring the radio transmissions of the incident establishes that informant actively participated in the sale to the extent that, at some point in time before the sale, he verbally requested the seller give them a 50, that is a $50 piece of cocaine. Accordingly, the informer was an "informer-participant" within the meaning of Thornton, as by his conduct, albeit slight, he actively assisted the undercover officer in soliciting the sale for purposes of obtaining evidence. Thornton, supra 238 Ga. at 163, 231 S.E.2d 729. Thus on a spectrum, the informer's conduct would fall somewhere between that of an "informer-witness" and that of a true "decoy."

The factors favoring disclosure of identity include the concession that the evidence would have met the Brady materiality test; the informant technically qualifies as an "informer-participant" rather than a "mere tipster" or an "informer-witness"; the informer is not currently assisting the police by providing timely drug intelligence by virtue of his absence; besides the undercover agent and the seller, the informer was the only other witness who actually witnessed the physical transfer of the cocaine and money in consummation Sowers v. State, 194 Ga.App. 205, 390 S.E.2d 110; Jones v. State, 192 Ga.App. 186, 384 S.E.2d 273; and Moore, supra, relied upon by appellant, are factually distinguishable from this case.

                of the drug sale;  the informant was physically present during and witnessed the entire incident;  appellant cross-examined the State's witnesses in an attempt to destroy their
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  • Thompson v. State, No. S03G0176.
    • United States
    • Supreme Court of Georgia
    • 15 Septiembre 2003
    ......105] Georgia, the defendant in a criminal proceeding "may make admissions in judicio in [his] pleadings, motions, and briefs. [Cits.]" Bannister v. State, 202 Ga. App. 762, 766(1)(b), 415 S.E.2d 912 (1992). See also Froelich v. State, 210 Ga.App. 647, 648, fn. 1, 437 S.E.2d 358(1993). Here, ......
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    • 24 Agosto 1998
    ......26 Considering circumstances similar to those of this case, including the decision of defendant not to testify, Bannister v. State 27 held the scales tipped toward not requiring the disclosure of the informant's identity. Although the final factor tipping the scales in ......
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    • United States Court of Appeals (Georgia)
    • 19 Mayo 2008
    ....... 19. Thornton v. State, 238 Ga. 160, 165(2), 231 S.E.2d 729 (1977). . 20. (Citation and punctuation omitted.) Bannister v. State, 202 Ga.App. 762, 763(1)(a), 415 S.E.2d 912 (1992). "The appellate court, in determining the propriety of disclosing the identity of an ......
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    • 30 Junio 2016
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