Moore v. State

• Decision Date: 02 June 1988
• Docket Number: No. 76181,76181
• Citation: 187 Ga.App. 387,370 S.E.2d 511
• Parties: MOORE v. The STATE.
• Court: Georgia Court of Appeals

Page 511

370 S.E.2d 511

187 Ga.App. 387

MOORE v. The STATE.

No. 76181.

Court of Appeals of Georgia.

June 2, 1988.

Certiorari Denied Sept. 8, 1988.

Charles R. Hunt, Dawson, for appellant.

Charles R. Ferguson, Dist. Atty., for appellee.

BIRDSONG, Chief Judge.

Appellant Keith Moore was convicted of a violation of the Georgia Controlled Substances Act by selling (0.1 gram) cocaine to a law enforcement agent on October 25, 1986.

At trial appellant made and subsequently withdrew a motion to dismiss for lack of speedy trial. Appellant then made a motion for a continuance on the grounds of newly discovered evidence. Appellant also made a motion for disclosure of the identity of a confidential informant. The trial judge denied appellant's motion for continuance and motion for disclosure.

Certain material facts in this case are controverted. It appears that on October 25, 1986, appellant and a friend named Harris were in Gus' bar. Also in the bar that evening were two GBI agents and a confidential informant. According to both agents, the appellant approached the bar and was introduced to Agent Carwell by the informant. Appellant then asked if Agent Carwell wanted to buy any "rocks" (a street term for cocaine). Subsequently the appellant, a black man who was identified only as Isaac, a GBI agent named Carwell, and, according to Carwell, the confidential informant, entered either the women's or men's 5' X 10' rest room. Agent Carwell testified that appellant sold him cocaine in the ladies' rest room in the presence of the informant and the unidentified black man. Agent Carwell also testified that neither the informant nor the unidentified black man participated in the drug transaction. Appellant testified that he entered the men's room as a matter of need and observed Agent Carwell and Isaac already inside by themselves. Appellant further testified that he observed Isaac hand something to Agent Carwell and state its price was $20. A friend of appellant, named Harris, testified that he had been drinking with appellant in the bar in October or November. He saw Agent Carwell and a man named Isaac go to the men's room, and that while the two were still in the rest room, the appellant went to use the facilities therein. Harris saw no other person enter or leave the rest room during this time. Two or three minutes later, he observed appellant leave the facility, followed by Agent Carwell about three or four minutes thereafter, and lastly by the man named Isaac. Another GBI agent, named Ellington, testified that following the informant's introduction of Agent Carwell to appellant, the three men went toward the rest room area. Agent Ellington did not see the man named Isaac; however, Agent Carwell testified that an unidentified black man joined appellant just before they reached the rest room area. Thus, according to Agent Carwell there were four men present during the sale. Held:

1. Appellant enumerates as error that the trial court abused its discretion in refusing to grant a motion for continuance based on the grounds of newly discovered evidence. Appellant sought this continuance in order to find the missing witness "Isaac." The newly discovered evidence ground rests on appellant's contention that through no lack of diligence on his part, the defense had been searching for the wrong witness until the morning of trial. Appellant's counsel in his brief "concedes that [appellant] did not and could not have met the strict criteria required to justify a continuance based on 'absence of a witness,' " see generally OCGA § 17-8-25, but asserts that a different criteria applies to the continuance motion made on the grounds of newly discovered evidence. At trial the appellant was unable to establish the last name of "Isaac," but introduced evidence that it may have been "Bowden or Bowen." A man believed to be the "Isaac" in question was living in Albany; however, one of appellant's witnesses had heard that "Isaac" was on the run and wanted by the police. "Isaac" was known to sell drugs. Prior to his ruling, the trial judge observed and appellant's counsel conceded that "Isaac" could not reasonably be expected to incriminate himself before the court; however, appellant's counsel did expect that if "Isaac" appeared he would testify truthfully and either support or refute the appellant's assertion that it was "Isaac" who had sold drugs to Agent Carwell.

Appellant clearly has failed to meet the statutory requirements for a continuance upon the ground of "the absence of a witness," OCGA § 17-8-25, nor has he met any other statutory criteria which under the circumstances would mandate such relief. Unless otherwise mandated by law, see, e.g., McGuire v. State, 185 Ga.App. 233, 236, 363 S.E.2d 850, " ' "[a] refusal to grant a continuance will not be disturbed by appellate courts unless it clearly appears that the judge abused his discretion in this regard." [Cits].' " Pope v. State, 256 Ga. 195, 207, 345 S.E.2d 831. We are satisfied that no such breach of discretion occurred in this case.

2. Appellant also enumerates as error that the trial court abused its discretion in refusing to grant the defendant's motion to reveal the identity of the confidential informant.

In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, the United States Supreme Court held that the government's privilege to withhold from disclosure the identity of a confidential informant is limited by the underlying purpose of the privilege itself and "the fundamental requirements of fairness." Id. at 60, 77 S.Ct. at 628. Thus, the court concluded that "[w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Id. at 60-61, 77 S.Ct. at 628. The Supreme Court declined to adopt a fixed rule of disclosure, opting instead for a balancing test which would balance "the public interest in protecting the flow of information against the individual's right to prepare his defense." Id. at 62, 77 S.Ct. at 629. The resolution of each case, accordingly, depends on the particular circumstances involved, "taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." (Emphasis supplied.) Id. at 62, 77 S.Ct. at 629. In Roviaro, the Supreme court, after applying the balancing test, held that it was prejudicial error not to reveal the informant's identity where the informant was the sole participant, other than the accused, in the transaction and, thus, "was the only witness in a position to amplify or contradict the testimony of government witnesses." (Emphasis supplied.) Id. at 64, 77 S.Ct. at 630. Further, although the defendant in Roviaro was not in a position to interview the unidentified informant (decoy) and thereby ascertain the anticipated scope and content of his testimony, the Supreme Court concluded that "[t]he circumstances of this case demonstrate that [the informant's] possible testimony was highly relevant and might have been helpful to the defense." (Emphasis supplied.) Id. at 63-64, 77 S.Ct. at 629.

In the keystone case of 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, our Supreme Court, after reaffirming Georgia's policy against nondisclosure of an informant's identity, unequivocally embraced the Roviaro balancing test as "it is now well established as the law of Georgia." Id. at 163-164, 231 S.E.2d 729. In Thornton 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). Id. at 163, 231 S.E.2d 729. 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." Id. 238 Ga. at 164-165, 231 S.E.2d 729. If such an informer's identity is required to be disclosed under Brady, the trial court should then apply the Roviaro balancing test. Id. at 165, 231 S.E.2d 729. However, the court observed that when "the informer is a pure tipster, who has neither participated in nor witnessed the offense, any evidence he might offer would be hearsay and inadmissible. Thus the tipster's identity could not be material to the guilt or innocence of the defendant under Brady or be relevant and helpful to the defense under Roviaro." (Emphasis supplied.) Id. at 165, 231 S.E.2d 729. Accordingly, the Supreme Court opined that if the trial court initially determined that the informant was merely a pure tipster, his identity should be privileged, and no further inquiry would be necessary. Id.; see Mooney v. State, 243 Ga. 373, 396, 254 S.E.2d 337 (pure tipster who had neither participated in nor witnessed the offense); Branch v. State, 248 Ga. 300, 301, 282 S.E.2d 894 (merely a tipster where not paid, took no part in offense, and not present at time of offense); see also Johnson v. State, 164 Ga.App. 501(4), 297 S.E.2d 38 (mere tipster who had not participated in and was not present at appellant's search and arrest). Thus, one of the important factors for determining whether an informant's identity must be revealed is the "type of informer involved." Thornton, supra 238 Ga. at 165, 231 S.E.2d 729.

In Connally v. State, 237 Ga. 203, 208, 227 S.E.2d 352, the Supreme Court stated "[w]ithout deciding whether or not this rule is applicable to...