People v. Musgrave
| Decision Date | 09 December 1974 |
| Docket Number | No. 26475,26475 |
| Citation | 529 P.2d 313,187 Colo. 135 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Philip C. MUSGRAVE, Jr., Defendant-Appellant. |
| Court | Colorado Supreme Court |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., David A. Sorenson, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Joseph Saint-Veltri, E. Michael Canges, Denver, for defendant-appellant.
The defendant Musgrave allegedly took part in a sale of methamphetamines to an undercover police agent. He was charged with dispensing dangerous drugs (1971 Perm.Supp., C.R.S.1963, 48--8--2 and 48--8--10) and with conspiracy to dispense dangerous drugs (1971 Perm.Supp., C.R.S.1963, 40--2--201). A jury convicted him on both counts. The key issue raised on appeal is whether the trial court erred in denying the defendant's motion for disclosure of the name of the confidential informant who participated in the narcotics transaction. We reverse and remand for a new trial.
The drug charges in this case arose out of police infiltration into the illegal drug market. Undercover police agents, with the assistance of a confidential informant, were able to effectuate a purchase of certain drugs and narcotic ingredients.
The essential facts are that Police Agent Wolf and the confidential informant purchased methamphetamines at the apartment of Charles Reecher. When the informant and Wolf arrived at the apartment, at least five others were present, including the defendant Musgrave and Richard Lujan. The informant introduced Police Agent Wolf to Reecher, who allegedly was the person who was going to make the sale. Shortly thereafter, Musgrave telephoned his connection in an effort to obtain the methamphetamines which were going to be sold. Musgrave was unable to reach his narcotic connection by phone, and both he and Lujan left the apartment to find the supplier. In about an hour, Musgrave and Lujan returned. Thereafter, the transaction in issue occurred in the kitchen where witnesses observed Musgrave handing the methamphetamines to Reecher. Reecher then handed the drugs to Wolf in exchange for $100.
Prior to the preliminary hearing, the defendant made a motion for an order to require the district attorney to disclose the name or names of any confidential informants who participated to any degree in the dangerous drug sale. The court denied the motion. Thereafter, the motion was renewed and denied, and during the course of the trial, defense counsel obtained through his investigator, information purporting to identify the informant and requested a continuance to obtain the presence of the informant as a witness or, alternatively, sought a mistrial. The defendant asserts that failure of the court to grant his motions for disclosure and for either a continuance or mistrial was error. We agree.
Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), provides the test which compels the result which we have reached. In Roviaro, the Supreme Court declared that there is no fixed rule with respect to the disclosure by the government of the identity of its informant and established a balancing test. The Court said:
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People v. Garcia
...when "the informant was unquestionably an eyewitness and an earwitness to the [drug] sales transaction."); People v. Musgrave, 187 Colo. 135, 137, 529 P.2d 313, 314 (1974) ("When it was established that the purported informant was an eyewitness and earwitness to the sale, and participated t......
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People v. Marquez
...Williams, 488 F.2d 788 (10th Cir. 1973); United States v. Martinez, 487 F.2d 973 (10th Cir. 1973); People v. Duran, supra; People v. Musgrave, Colo., 529 P.2d 313. The foregoing cases suggest some of the many factors that must be considered in the balancing process mandated by Roviaro, supr......
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People of The State of Colo. v. SANTANA
...Id. We will, however, reverse the denial of a motion for mistrial when “fundamental fairness” so requires. See People v. Musgrave, 187 Colo. 135, 137, 529 P.2d 313, 314 (1974) (mistrial should have been granted when defendant was denied access to identity of confidential informant); People ......
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People v. Rodriguez, 80SA359
...that the trial court would follow Colorado law and order the disclosure of the informant's identity. See People v. Duran, supra; People v. Musgrave, supra. Accordingly, we believe the prosecution's duty to make reasonable effort to keep contact with this informant began well before the "tim......