People v. Langford

• Decision Date: 01 June 1976
• Docket Number: No. 26379,26379
• Citation: 550 P.2d 329,191 Colo. 87
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dennis E. LANGFORD, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 329

550 P.2d 329

191 Colo. 87

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dennis E. LANGFORD, Defendant-Appellant.

No. 26379.

Supreme Court of Colorado, En Banc.

June 1, 1976.

Rehearing Denied June 21, 1976.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., J. Stephen Phillips, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Stephen A. Ware, Aspen, for defendant-appellant.

LEE, Justice.

Dennis E. Langford appeals his conviction of possession of marijuana for sale, in violation of C.R.S.1963, 48--5--20(1)(a) and (b). ¹ We find no prejudicial error and therefore affirm.

Defendant's arrest grew out of an attempt to smuggle over nine hundred pounds of marijuana into the United States. A special agent of the Bureau of Customs had been told by a confidential informant that an aircraft with the drug aboard would land at the La Plata County airport sometime during the night of January 20, 1973, and that the plane would be met by up to six men driving several vehicles. In cooperation with state and local law enforcement officers, surveillance was set up at the airport. Defendant and two codefendants were observed transferring the marijuana from the plane to a truck. One of the codefendants then drove the truck away, while defendant and the other man followed in a sports car. In the meantime, the plane departed the airport. The officers commenced pursuit and both vehicles were soon apprehended and defendant and his companions were arrested. A search of the truck revealed the large quantity of marijuana, valued at between one and two hundred thousand dollars.

I.

Defendant initially challenged the constitutionality of the statute under which he was convicted and argued, further, that the search of the truck was unlawful, as being without probable cause. He conceded, however, at oral argument, that the statute is valid, See e.g., People v. Summit, 183 Colo. 421, 517 P.2d 850, and that he lacked standing to challenge the legality of the search. We need not therefore consider these issues.

II.

Defendant argues that the trial court prejudicially erred in failing to require disclosure of the identity of the confidential informant, or in at least holding an In camera hearing concerning the latter's identity and activities. People v. Quintana, 183 Colo. 81, 514 P.2d 1325. Defendant argues that the informant might have given testimony at trial, favorable to defendant, or that the informant might even have been in the aircraft, in which case, as a witness to the transaction, he might have been able to testify that defendant was a mere bystander. The trial judge, both at the suppression hearing and at trial, heard evidence relating to the informant's role. He concluded that the information supplied by the informant was credible and that an In camera hearing, as suggested in Quintana, supra, was not warranted; and, further, that under the balancing of interests test, the government was entitled to withhold his identify.

When a question of the 'informer's privilege' arises at the trial itself, where the issue is the critical one of guilt or innocence, both this court and the United States Supreme Court have held that whether disclosure of the informant's identity is required hinges upon the outcome of the balancing of interests tests. See Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639; People v. Marquez, Colo., 546 P.2d 482. In Roviaro, it was stated:

'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 rnders nondisclosure erronerous 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.'

Marguez sets forth some of the relevant factors to be considered in this balancing process. The court stated that the accused is required to make at least a minimal affirmative showing of the need for disclosure; and that a defendant's mere unsupported assertion that he desires disclosure is not enough. A defendant's speculations, without more, will not support a conclusion that the informant would be of any substantial assistance in his defense. United States v. Estrada, 441 F.2d 873 (9th Cir. 1971); State v. Oliver, 50 N.J. 39, 231 A.2d 805.

The record here discloses no evidence, direct or circumstantial, tending to support defendant's suggestion that the informant might have been an eye- or earwitness to any part of the incident, or a participant in the criminal transaction. All of the evidence indicated that the informant had merely relayed information to officials, which proved accurate and resulted in defendant's arrest. When all the evidence discloses that the informant was an informant and nothing more, the prosecution should not, as a general rule, be required to reveal his identity. United States v. Herrera, 455 F.2d 157 (5th Cir. 1972); Miller v. United States, 273 F.2d 279 (5th Cir. 1959), Cert. denied, 362 U.S. 928, 80 S.Ct. 756, 4 L.Ed.2d 747; Cf. McNulty v. People, 174 Colo. 494, 483 P.2d 946. The trial court did not err in declining to require disclosure of the informant's identity.

In a related argument, defendant contends that the trial court erred in failing to require the prosecution, pursuant to the defense motion for disclosure of exculpatory evidence, to disclose the identity of the owner and pilot of the aircraft. Though the exact content of this motion is not revealed by the record, it was, insofar as can be determined, an oral motion, general in nature, for the discovery of all exculpatory evidence. The record does not support the conclusion that the prosecution withheld any relevant exculpatory evidence available to it at the time of trial, including the identity of the owner or pilot of the aircraft.

The undisputed evidence...