Dorsey v. State

• Decision Date: 02 February 1977
• Docket Number: No. 288,288
• Parties: John Carroll DORSEY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 525

34 Md.App. 525

368 A.2d 1036

John Carroll DORSEY v. STATE of Maryland.

No. 288.

Court of Special Appeals of Maryland.

Feb. 2, 1977.

Stephen L. Snyder, Baltimore, with whom was Joel L. Berger, Baltimore, on the brief, for appellant.

John A. Austin, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty. for Baltimore William A. Swisher, State's Atty. for Baltomore City, and Michael J. Patryn, Asst. State's Atty. for Baltimore City on the brief, for appellee.

Argued before MOYLAN, MENCHINE and MOORE, JJ.

MOORE, Judge.

Appellant, John Dorsey, was convicted at a jury trial in the Criminal Court of Baltimore (Hargrove, J.) on two counts of distributing a controlled substance, heroin, Md.Code, Art. 27, § 286 (1957 ed., 1976 Repl.Vol.), for which he received two concurrent ten year sentences. ¹ On this appeal, the contention is strongly urged that the court below erred in failing to grant a motion to compel disclosure of the name of an informant used by the State in its investigation. Also raised are issues of pre-arrest delay and denial of appellant's Six Amendment speedy trial right. Finding each contention devoid of merit, we affirm.

In a pretrial motion upon which a full hearing was conducted immediately prior to trial, appellant sought to compel the State to reveal the name of an unidentified informant who introduced Detective Larry Strickland of the Drug Enforcement Detail, Baltimore City Police, to the appellant on July 24, 1974. The testimony of Strickland and two other police officers engaged in surveillance disclosed that the informant, referred to as 'SE', met with Dorsey on July 23, 1974, for the purpose of setting up a meeting between Strickland and the appellant for a purchase of heroin. Appellant and 'SE' arranged to meet again the following day in the 1800 block of Lorman Street, Baltimore.

Detective Strickland and the informant, riding in an unmarked official government car, with the two other officers observing from a distance, returned as arranged the next day, July 24. As the two pulled up, appellant walked over to their car and immediately inquired of the undercover officer, Strickland, known to him only as 'the man from the Eastern Shore,' as to what quantity he desired. Detective Strickland offered to purchase 10 bundles. (This later measured out to 107.5 grams.) Dorsey then told Strickland that the price would be $125 per bundle and instructed him to return in several hours. According to Officer Strickland, the informant took no part whatsoever in the negotiations: 'The only part he played in this was introducing me to Dorsey,' he testified.

Between 6:00 and 6:30 p.m., that same day, the detective and 'SE' returned to the 1800 block of Lorman Street. They left their car and met the appellant on the street. As they were conversing with Dorsey, an unidentified male, known to the police only as 'Alias Ronnie,' informed the appellant that the drugs would not be ready for another twenty minutes. Again, a later meeting was arranged.

Finally, at a third meeting on July 24th, at approximately 9:30 p.m., the purchase was consummated at the same location. Detective Strickland, with 'SE' riding in the passenger seat, pulled up next to the appellant. Dorsey thereupon entered the passenger side of the automobile while, as prearranged, the informant exited the vehicle, admittedly 'to avoid being part of the transaction.' Immediately thereafter, according to Detective Strickland and the other two officers who were again observing from a safe distance, appellant's co-defendant drove up and parked behind the government car. 'Alias Ronnie,' who had been standing near the car, then entered the co-defendant's vehicle and emerged with a package under his arm. He gave the package to the appellant who in turn delivered it to Strickland. After examining the contents, Strickland presented $1125 in currency (the serial numbers of which had been previously recorded) to the appellant who shortly departed. The informant was absent from the car during the entire exchange.

A second sale of 5 bundles (67.3 grams) of heroin was transacted on July 31 when Strickland, pursuant to arrangements made with Dorsey on July 24th, returned to the 1800 block of Lorman and met with the appellant. A similar procedure was followed but the informant had nothing to do with this meeting and was not present.

In the ensuing months, there was a continuing series of investigations in the same district of Baltimore City, not involving the appellant, in which Detective Strickland remained 'undercover.' For this reason, he did not obtain an arrest warrant for the appellant until January 22, 1975. The warrant was not executed until February 25, 1975. In explanation of the month's delay, the officers testified they often wait a period of time for arrest warrants to 'stack-up' before apprehending the individuals involved.

Right to Withhold Informant's Name

The right of the State to withhold from disclosure the identity of persons who furnish the police with information concerning criminal activities is not unqualified. Roviaro v. United States, 353 U.S. 53, 60, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). In determining whether the State may legitimately keep confidential the name of the informant, the court must balance the public's interest in effective law enforcement with the accused's interest in preparing a defense. ² 353 U.S. at 62, 77 S.Ct. at 628. In Roviaro, Mr. Justice Burton, writing for the Court, stated: 'Where the disclosure of an informer's identity, . . . is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause,' the balance tips in favor of the accused. 353 U.S. at 60-61, 77 S.Ct. at 628. While the particular circumstances of each case are controlling, the factors to be considered are the nature of the crime charged, the possible defenses and the potential import of the informer's testimony. Id. at 62, 77 S.Ct. 623.

In Drouin v. State, 222 Md. 271, 286, 160 A.2d 85, 93 (1960), the Court of Appeals stated that where 'the name of the informer is useful evidence to vindicate the innocence of the accused, lessens the risk of false testimony or is essential to a proper disposition of the case . . .,' the informant's identity becomes 'relevant and helpful to the defense of an accused' within the meaning of Roviaro. Whether disclosure is necessary to an accused's defense is within the sound discretion of the trial court. Gulick v. State, 252 Md. 348, 354, 249 A.2d 702, 706 (1969); Drouin v. State, supra, 222 Md. at 286, 160 A.2d at 93.

Upon the facts here present, we find this Court's decision in Nutter v. State, 8 Md.App. 635, 262 A.2d 80 (1970), to be highly persuasive authority. In Nutter, police placed an informant on the street, in a high volume drug trafficking neighborhood, as part of their investigation. The police watched as the appellant made contact with the informant. Both individuals departed for a short while and when the imformant returned he displayed two capsules of cocaine which he claimed he purchased from the appellant. Shortly thereafter the police, armed with a warrant, searched appellant's barbershop and discovered several more capsules of cocaine in a broken washbasin. Appellant was convicted of having under his control the narcotic drug Cocaine.

Chief Judge Orth, speaking for the court, reversed the conviction because of the trial court's failure to compel the State to disclose the identity of the informant. In making its determination of guilt, the trial court had relied not only upon the search of the barbershop, but also upon the events of the previous day when the informant allegedly purchased cocaine on the street from the appellant. In right of the fact that the informant was the sole participant in the sale and that appellant completely denied any involvement in the transaction, this Court declared the informant's identity to be essential to the defense.

Distinguishing cases where an informer is a mere observer as opposed to a participant, the court stated:

'We believe that if an informer is a participant, accessory or witness to the crime it is (only) a factor (and it does not constitute an exception to the privilege in and of itself) to be considered in determining whether his identity is necessary and relevant to a fair defense. And we feel that 'witness' as used in Gulick (and Drouin) means a material witness, in the sense that his testimony is important to a fair determination of the cause. . . . Thus in this context 'material' may be said to have a meaning more restictive than its usual meaning. So, although an eyewitness to a crime is clearly a 'material' witness as that word is ordinarily used, if he is an informer, simply observing an illegal transaction but not participating in it, the fact that he observes the transaction does not necessarily make his possible testimony so important as to compel disclosure of his identity in the face of the rationale of the nondisclosure privilege.' 8 Md.App. at 639, 262 A.2d at 83-84.

Where the accused is an active participant, we said:

'Thus where the informer is an active participant in the illegal activities disclosed by him, his actions and identity can become part of the res gestae and concealment of his identity might hamper the accused in making his defense by depriving him of the testimony of a material witness.' 8 Md.App. at 640, 262 A.2d at 84.

The facts in the case sub judice clearly support the State's privilege at trial to protect the identity of its informant. Here the uncontroverted testimony reveals that the informant played no role in the actual negotiations or the sale of the illegal drugs. While the meeting on July 23 between appellant and the informer did involve a discussion of drugs, the testimony of Detective Strickland indicates that the meeting was merely for the purpose of informing the appellant that 'SE' had a friend...