Jackson v. State, 4291
| Decision Date | 07 June 1974 |
| Docket Number | No. 4291,4291 |
| Citation | 522 P.2d 1286 |
| Parties | Freddie L. JACKSON, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
John W. Pattno of Pattno & Smith, Cheyenne, for appellant.
Clarence A. Brimmer, Atty. Gen., Jerome F. Statkus, Asst. Atty. Gen., Thomas J. Carroll, Laramie County Atty., Cheyenne, for appellee.
Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE, and McCLINTOCK, JJ.
This is an appeal from the judgment and sentence rendered upon guilty verdicts by the court sitting without a jury upon grand jury indictments of the crimes of possession with intent to deliver marihuana, and delivery of marihuana. The defendant alleged prejudicial error because he was denied permission to interview a State witness prior to trial.
In discussing the trial court's denial of the defendant's motion to compel the prosecuting attorney to reveal the name and address of the witness in question we must consider the facts and information given to and available to the trial court when it ruled on the motion. This is significant because there is a different standard as to disclosure of the identity of informers as contrasted to participating witnesses. Generally an informer is defined as an undisclosed person who confidentially discloses material information of a law violation, thereby supplying a lead to officers for their investigation of a crime. A person who supplies information only after being interviewed by law enforcement officers, or gives information as a witness during the course of investigation or trial is not an informer in the usually accepted sense of the word. Gordon v. United States, 5 Cir., 438 F.2d 858, 875; Crosby v. State, 90 Ga.App. 63, 82 S.E.2d 38, 39. Here the prosecution misled the court and the defendant by insisting the party was an informer when in fact he was a quasi police officer-participating witness.
On May 3, 1973, the grand jury returned two indictments against the defendant. One charged him with unlawfully possessing marihuana with intent to deliver contrary to § 35-347.31(a)(ii), W.S.1957, 1973 Cum.Supp., and the other charged that he did unlawfully deliver a controlled substance, marihuana, to Lorraine Elliott contrary to § 35-347.31(a)(ii), and warrants were subsequently issued by the district court. On May 11, 1973, counsel for defendant filed motions for discovery under Criminal Rules 18(a), (b) and (h). At the arraignment hearing on May 14, 1973, counsel for defendant advised the court that although the county attorney had permitted him to examine some records he felt he was not given all the information to which he was entitled, and asked that the trial court enter an order upon his motions and that arraignment be continued until such time as he could examine the records so he could advise his client as to pleas. On that same day the trial court entered an order for inspection as prepared and submitted by defense counsel, and continued the arraignment. On June 8, 1973, the defendant was arraigned and entered pleas of not guilty reserving the right to make further discovery after the pleas, and the trial court entered another order granting defense counsel the right to inspect certain records of the prosecuting attorney. On June 15, 1973, defendant filed a motion to require the county attorney to produce the address of Lorraine K. Elliott, and the name and address of SN-0100. In the affidavit, attached to the motion, counsel stated that in examining the prosecution documents he came upon the name of Lorraine K. Elliott and someone designated only as SN-0100, and that he was informed and believed they had participated in the activities with which the defendant was charged. On June 25, 1973, the matter was set for jury trial on July 16, 1973. On July 3, 1973, counsel for defendant filed an affidavit in support of the motion to produce names and addresses in which it was stated that it was impossible to prepare a defense without being able to talk with the witness, SN-0100. Attached to the affidavit were copies of the records of the Attorney General's investigations which identified the individual as SN-0100 and which indicated that SN-0100 participated in the marihuana sale with which the defendant was charged, and also showed that Lorraine Kay Elliott was a special agent-trainee of the Office of the Attorney General. On July 6, 1973, a hearing on the motion to produce the name and address of SN-0100 was held by the district court and the proceedings were transcribed. The prosecutor filed nothing in resistance to the motions and affidavits of the defendant. During the hearing on the motion Mr. Franklin D. Bayless, Deputy County and Prosecuting Attorney, advised the court that the name of SN-0100 was Alfredito Sanchez and repeatedly referred to him as an informer. Defense counsel pointed out that Sanchez was more than an informer in that he actively participated in the sales transaction. Copies of the records of the Attorney General's Office attached to the defendant's motion revealed that SN-0100 was the one who actually contacted the defendant and arranged for and was present at the sale transaction. Still, the deputy prosecutor kept referring to him as an informer and stated to the court that the prosecution opposed revealing the informer's address because they had received information his life was in danger. In denying the defendant's motion the court said that even though it was not clear there was a risk to the informer, there was no use taking unnecessary chances. Although the motion was denied, the court required the State to make available all statements of the informer and, further, that the informer be present at trial. It is clear then the court was led by the prosecution to believe that SN-0100 was an informer. The prosecution knew that SN-0100 was more than an informer-he was the principal participating witness.
During the trial the county attorney stated that Sanchez was an unpaid undercover agent for the Attorney General's Investigative Office which Sanchez confirmed. There is nothing in the record to indicate that Sanchez was an informer. In its brief the State agreed with the defendant that Sanchez was not an informer. We can visualize situations where a person may start out as an informer and then become something in addition, such as a witness or a participating witness. Here the capacity of Sanchez could best be characterized as that of a police officer-participating witness. While usually the identity of an informer need not be revealed, the general rule is that the identity of a witness may not be withheld from the defense. Riviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 627, 1 L.Ed.2d 639; Sorrentino v. United States, 9 Cir., 163 F.2d 627, 628. See Annotations in 76 A.L.R.2d 262 and 73-78 A.L.R.2d Later Case Service 254 (1968). See also accused's right to interview witnesses held in...
To continue reading
Request your trial
-
Cook v. State
...173 (Wyo.1976); Boyd v. State, 528 P.2d 287 (Wyo.1974), cert. denied 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102 (1975); Jackson v. State, 522 P.2d 1286 (Wyo.1974); and Dorador v. State, 520 P.2d 230 (Wyo.1974). See also Howard, 762 P.2d 28.1 "Given the facts of this case, the prosecutor cou......
-
Gale v. State
...summary of their expected testimony[.] In recognizing the right to have access to the names of witnesses, this court, in Jackson v. State, 522 P.2d 1286, 1289 (Wyo.1974), Counsel is not required to develop a defense for the first time upon trial, and any attorney who attempted to do so at t......
-
Duffy v. State
...P.2d 979 (1974); Boyd v. State, Wyo., 528 P.2d 287 (1974), cert. denied 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102 (1975); Jackson v. State, Wyo., 522 P.2d 1286 (1974); Dorador v. State, Wyo., 520 P.2d 230 (1974); Loddy v. State, Wyo., 502 P.2d 194 (1972), cert. denied 414 U.S. 1134, 94 S.C......
-
Rivera v. State
...State, 538 P.2d 271, 274-76 (Wyo.1975); Dycus, 529 P.2d at 980-81; Montez v. State, 527 P.2d 1330, 1331-32 (Wyo.1974); Jackson v. State, 522 P.2d 1286, 1288-89 (Wyo.1974); Higby v. State, 485 P.2d 380, 384 (Wyo.1971). See also W. Michael Kleppinger, Note, Criminal Procedure--The Entrapment ......