Burks v. Com.
| Decision Date | 01 October 1971 |
| Citation | 471 S.W.2d 298 |
| Parties | Joseph Earl BURKS and James Donald Miller, Appellants, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Britton P. Franklin, Louisville, for appellants.
John B. Breckinridge, Atty. Gen., Curtis L. Wilson, Asst. Atty. Gen., for appellee.
Joseph E. Burks and Donald Miller were indicted on four counts of possession and sale of narcotics in violation of KRS 218.020. The indictment charged that on two successive dates, October 5 and 6, 1968, they (1) unlawfully possessed and (2) unlawfully sold morphine to an unnamed person. Following a joint trial on pleas of not guilty, in which neither of the appellants testified, Miller was found guilty on all four counts and his punishment was fixed at two 10-year and two 20-year terms in the penitentiary and $80,000 in fines. Burks ws found guilty on two counts and his punichment was fixed at one 10-year and one 20-year term and $40,000 in fines. Cf. KRS 218.210. Judgment was entered in accordance with the verdict, with the prison terms to run concurrently. Burks and Miller appeal.
At approximately 4:00 P.M. on October 5, 1968, Detective Oakes of the Louisville Police Department received what is described as 'certain information' from an unnamed narcotics addict, hereinafter called Mr. X, which resulted in a meeting between Mr. X. and the appellants for the purpose of Mr. X's purchasing narcotics from them .
At about 7:00 P.M. on the same day Detectives Oakes and Cissell met with Mr. X in a motel room. The officers searched the person, clothing and automobile of Mr. X for narcotics. Being satisfied that he possessed none, the officers gave him $30 to use in the subsequent purchase of narcotics. Mr. X then proceeded alone in his own automobile, followed by the officers in a separate vehicle, to the intersection of Second and Ormsby Streets.
Shortly after 8:00 P.M. an automobile containing Miller and Burks and a man named Wilson arrived at the northwest corner of Second Street. Mr. X approached the automobile, followed by the two detectives. Mr. X stood near the left front door of the automobile with the two officers a few feet away and in position to see and hear what followed. The officers saw Wilson count out 10 pills from a bottle, put them in a cellophane packet and hand the package to Miller, who in turn handed it to Mr. X, whereupon Mr. X at once counted out and handed Miller $30 and Miller gave it to Wilson. Miller asked Mr. X if he wanted any more, and upon Mr. X's advising that he would have some money the next day Miller agreed to meet him at the same time and place on the next evening. Mr. X then walked directly to the officers and gave them the package, which was found to contain 10 morphine tablets.
On the following evening, October 6, 1968, Detectives Oakes and Cissell observed substantially the same occurrence as they had witnessed the previous evening. The appellants and Wilson arrived in the same car as before. The seating arrangement in the car had changed, and it was parked at a different place, but the transaction observed by Oakes and Cissell was much the same as that of the night before. With Oakes and Cissell standing but a few feet away, Burks counted out five pills from a bottle, placed them in a cellophane packet and handed it to Miller, who then passed it to Mr. X. Mr. X gave $15 to Miller and Miller handed it to Wilson. The container purchased by Mr. X was later found to contain five morphine tablets.
The role of Mr. X in these transactions was brought out in the testimony of Oakes, the first witness, and at this time a continuing motion was made by the appellants to compel the Commonwealth to disclose the identity of and to produce Mr. X for the purpose of direct examination. The court overruled this motion and a renewal of it at the close of the Commonwealth's case.
The sole contention in support of the appeal is that the trial court committed prejudicial error in refusing to compel the Commonwealth to reveal the identity of and to produce Mr. X.
The appellants rely primarily on Roviaro v. United States, 353 U.S . 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). In that case the government relied upon the testimony of two federal narcotics agents, Durham and Fields, and two police officers, Bryson and Sims.
On the night of August 12, 1954, these four officers met with an unnamed...
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