Smith v. State, A89A0825
| Decision Date | 05 July 1989 |
| Docket Number | No. A89A0825,A89A0825 |
| Citation | 192 Ga.App. 144,384 S.E.2d 677 |
| Parties | SMITH v. The STATE. |
| Court | Georgia Court of Appeals |
Glover & Davis, R. Keith Prater, Newman, for appellant.
William G. Hamrick, Jr., Dist. Atty., Agnes McCabe, Asst. Dist. Atty., for appellee.
Alvin Michael Smith appeals his conviction for two counts of sale of cocaine, obstruction of an officer and criminal trespass.
His defense was "mistaken identity." He was not arrested at the time of the cocaine sales. He complains, as fatal to his defense, of "the prosecution's refusal or failure (and the Superior Court's condonation of that act), to identify the passenger who accompanied agent Marc Williams on the cocaine buys...." He also contends the trial court erred in denying his motion to suppress "the tainted identification of the undercover officer ... [of Smith] as the perpetrator of the cocaine sales at issue." Held:
1. Appellant's complaint on appeal of the prosecutor's refusal or failure to identify the passenger, and the trial court's condonation of that refusal or failure, is without merit. In State v. Mason, 181 Ga.App. 806, 353 S.E.2d 915 and then in Moore v. State, 187 Ga.App. 387, 370 S.E.2d 511, we firmly established the requirements for the disclosing of the identity of an informer, and summonsing him or her as a defense witness (State v. Mason, supra) as well as the actual conduction of a motion to reveal identity. See Moore, supra, p. 388, 370 S.E.2d 511.
Public policy inhering in the need to protect an informer and to encourage information is so strong that it may, in particular circumstances, outweigh a defendant's right to summons a witness even if the witness is essential to the defense. State v. Mason, supra, 181 Ga.App. pp. 809-812, 353 S.E.2d 915. In such a case, the informer's privilege may be so strong that the prosecution will generally drop the prosecution rather than unveil the informer. State v. Mason, supra. Therefore, there are particular requirements placed upon the defendant to justify identifying or summonsing the informer. The defendant must ask the trial court for an in-camera examination of the matter, by first showing not only the materiality but the necessity of the witness' testimony in the defense. State v. Mason, supra, p. 813, 353 S.E.2d 915. Appellant asked the State for the information, but he did not properly ask the trial court to make the State produce it; he did not show a materiality and necessity for disclosure of the passenger's identity and testimony. Appellant does not even suggest the witness would exonerate him, or in any other way establish the witness' materiality and necessity. If appellant did not know the identity of the passenger, or what such witness would say, he made no genuine attempt to find out, and certainly made no proper request as required described in State v. Mason and Moore v. State, supra, and authority relied upon therein.
We find no error.
2. Appellant does cast error on the trial court's denial of his motion to suppress the agent's in-court identification of the appellant. It is not necessary to recount all the evidence here; but in essence, appellant contends it shows the agent did not know appellant. He learned appellant's name...
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