People v. Roy, No. 85SA247

• Docket Nº: No. 85SA247
• Citation: 723 P.2d 1345
• Case Date: August 25, 1986
• Court: Supreme Court of Colorado

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723 P.2d 1345 The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Robert Russell ROY, Defendant-Appellant. No. 85SA247. Supreme Court of Colorado,
En Banc. Aug. 25, 1986.

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Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Peter Jay Stapp, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Carroll E. Multz, P.C., Carroll E. Multz, Donna A. Salmon, Grand Junction, for defendant-appellant.

VOLLACK, Justice.

Robert Russell Roy, defendant-appellant, appeals his conviction by a jury of the charge of unlawful distribution, sale, or possession of cocaine in violation of section 18-18-105, 8 C.R.S. (1985 Supp.). ¹ We affirm.

Roy was charged with violation of this statute along with two other persons who were tried separately. The offense involved the sale at the defendant's garage

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of one pound of cocaine to an undercover law enforcement officer. During the investigation, the undercover officer used a body microphone to record certain conversations. Further, one of the named witnesses served as a confidential informant.

The defendant filed a discovery motion seeking a copy of the tape recorded conversations and a motion for disclosure of the confidential informant. The trial court ultimately denied the motion for disclosure of the identity of the confidential informant, concluding such disclosure would endanger that person's life. The trial court noted the confidential informant was listed as a witness and thus was known to the defense. Following an in camera review, the trial court further ruled that certain information contained in the tape recorded conversations would reveal the confidential informant's identity, so edited transcripts of the tapes were furnished to the defendant. The defendant also filed a motion to dismiss, alleging the statute under which he was charged denied him equal protection of the law. The trial court denied that motion.

On appeal, defendant contends the trial court's refusal to let him review the unedited tape recordings denied him a fair trial. Defendant also maintains the trial court erred in denying a motion for mistrial based on alleged improper questions and comments by the prosecutor, and further contends the cumulative effect of the aforementioned errors requires reversal of his conviction. Defendant argues that section 18-18-105, 8 C.R.S. (1985 Supp.), denies an accused person equal protection of the law because it punishes as a class three felony the offenses of attempt and conspiracy which are punished in similar statutes as class four and five felonies. Finally, defendant asserts he was denied his right to a fair and impartial jury when his challenge for cause of one of the jurors was refused by the trial court. We shall address the allegations of error in the order propounded by the defendant-appellant.

I.

Defendant contends the trial court's denial of his request for discovery of the tape recordings and the trial court's ruling allowing a partial transcript of the tapes to be read to the jury denied him a fair trial. He argues the ruling denied his right to effective assistance of counsel because it prevented his attorney from deciding whether any information contained on the tapes would be helpful to the defense. Defendant further argues the ruling denied him the ability to attack the trustworthiness of the tapes based on the presence of inaudible portions.

We note the trial court reviewed the tapes and concluded they would reveal the identity of the confidential informant. Further, the trial court found the deleted portions of the tapes would not assist the defense in the preparation of its case. Based on these considerations, the trial court denied the defendant access to certain portions of the tapes.

Although parts of a tape are inaudible, this does not render the entire recording inadmissible. The decision as to the admissibility of the recording is one that rests in the sound discretion of the trial court. People v. Jeffers, 690 P.2d 194 (Colo.1984); People v. Quintana, 189 Colo. 330, 540 P.2d 1097 (1975); People v. Coca, 40 Colo.App. 440, 580 P.2d 1258 (1978).

Similarly, we note the decision as to whether the identity of a confidential informant should be disclosed to the defense is within the discretion of the trial court. People v. Nunez, 658 P.2d 879 (Colo.1983); People v. Martinez, 658 P.2d 260 (Colo.1983); People v. Dailey, 639 P.2d 1068 (Colo.1982); People v. Korte, 198 Colo. 474, 602 P.2d 2 (1979). Whether a privilege exists to withhold the identity of a confidential informant from the defense requires a balancing of the public interest in protecting the flow of information regarding violations of the law against the individual's right to prepare his defense. Roviaro v. United States, 353 U.S. 53, 56, 77 S.Ct. 623, 625, 1 L.Ed.2d 639 (1957); People v. McLean, 661 P.2d 1157 (Colo.1983); People

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v. Marquez, 190 Colo. 255, 546 P.2d 482 (1976).

Under the circumstances involved here, the trial court determined the information withheld from the defense would not aid in the preparation of its case. Moreover, nondisclosure of the information was necessary to protect the safety, welfare and possibly the life of the confidential informant. We cannot say the...