Lightfoot v. State

• Decision Date: 28 June 1988
• Docket Number: 2 Div. 613
• Citation: 531 So.2d 57
• Parties: Eddie Dean LIGHTFOOT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 57

531 So.2d 57

Eddie Dean LIGHTFOOT v. STATE.

2 Div. 613.

Court of Criminal Appeals of Alabama.

June 28, 1988.

Rehearing Denied Aug. 23, 1988.

David A. Reid, Livingston, for appellant.

Don Siegelman, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Eddie Dean Lightfoot was convicted for the possession and sale of marijuana and sentenced to five years' imprisonment. On this appeal from those convictions, the appellant argues that the trial court erred in not requiring the disclosure of the identity of the confidential informant. We disagree.

The State's evidence shows that Rector Johnson, Jr., a law enforcement officer with the Alabama Bureau of Investigation, was working as an undercover agent in a narcotics investigation in York, Alabama. On the afternoon of December 27, 1985, an informant introduced Johnson to the driver of an automobile parked in front of the Soul City Shop. At trial, Officer Johnson positively identified the appellant as this driver. Johnson told the appellant he wanted to buy some dope and the driver said "get in." The informant got in the front seat. Johnson got in the back seat.

Johnson told the appellant that he wanted to buy a one-ounce bag of marijuana and the appellant set the price at $70. Johnson gave $70 to the appellant, who then handed Johnson a plastic bag containing seven-eighths of an ounce of marijuana. Johnson and his informant got out of the car. Johnson "ran" the tag number of the car and found that the car was registered to the defendant.

The appellant presented an alibi defense, testifying that he never sold marijuana to Johnson and that he was in Meridian, Mississippi, shopping with his wife at the time of the crime.

Here, the main issue at trial was the identity of the driver of the car who sold the undercover agent the marijuana. Only three people were present when the sale occurred--the driver, the informant, and the undercover agent. On appeal, the appellant implies that the informant would impeach and contradict Officer Johnson's identification of the appellant as the individual who sold him the marijuana.

There was no pretrial motion seeking discovery of the identity of the informant. The only request for disclosure occurred during the trial when defense counsel was cross-examining the undercover agent:

"Q. What's the name of your informant that you used?

"MR. WATKINS [Special prosecutor]: Object.

"A. Department policy unless directed to the Court to keep it confidential, sir.

"MR. REED [Defense Counsel]: I would ask the Court to direct the witness to name the informant.

"THE COURT: Overrule. You understand that's the law that you do not have to name an informant."

When defense counsel requested disclosure of the informant's identity, the only evidence before the court was Officer Johnson's testimony that he was "absolutely sure" that the man who sold him the marijuana was the appellant.

As ground five of his motion for new trial, the appellant states, "The Court erred in refusing to require that the State disclose the name of the alleged informant." The hearing on the motion for new trial is not contained in the record on appeal.

There is no fixed rule with respect to the disclosure of the identity of informants.

"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." Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628-29, 1 L.Ed.2d 639 (1957).

The rules regarding a defendant's right to the disclosure of the identity of an informant on the issue of guilt or innocence are accurately summarized in 33 Am.Jur.P.O.F.2d 549 Criminal Law: Need for Disclosure of Identity of Informant, at 559, 563 (1983).

"Generally speaking, where the identity of a confidential informer is sought on the issue of guilt or innocence, and the alleged informer is shown to have been a participant in the transaction constituting the offense, the prosecution is required to disclose his identity and address on the request of the accused. The rule does not apply, however, to an informer who is involved in only an indirect way, such as a 'tipster.'

* * *

"On the other hand, where the alleged informer is not the only participant in the transaction who can establish the defendant's guilt, disclosure of his identity may not be automatically required. It has been suggested that the procedure in such a case--where the facts do not establish either that the informant is a 'mere' tipster who did not in any way participate in the criminal transaction, or that the informant was the only active participant in the transaction other than the defendant--is for the trial judge to order an in camera hearing to question the informant and ascertain whether his testimony might be helpful to the defendant."

See also Self v. State, 420 So.2d 798, 800 (Ala.1982) ("[I]f a confidential informer is a material witness, i.e., an active participant in the illegal transaction which leads to the charges brought against the accused, then the accused is entitled to learn from the State the identity of the confidential informant and his address."); Annot., 76 A.L.R.2d 262, § 21 (1961).

We are not persuaded by the appellant's argument that the trial court erred in denying disclosure of the informant's identity because our review of the record convinces us that the appellant made no serious or timely effort to discover that identity. "The accused's right to disclosure of an informant's identity may be waived, and the right is lost unless the accused seasonably makes a sufficient request or demand for disclosure." 21A Am.Jur.2d Criminal Law § 1005 (1981). See also Annot., 76 A.L.R.2d 262 at § 21.

The appellant was undoubtedly aware that an informant witnessed the sale of marijuana because the record shows that a preliminary hearing was held in this case...