State v. Barrett, 83-71

CourtUnited States State Supreme Court of Vermont
Citation320 A.2d 621,132 Vt. 369
Docket NumberNo. 83-71,83-71
PartiesSTATE of Vermont v. Frank BARRETT, Jr.
Decision Date02 April 1974

Robert W. Gagnon, State's Atty. and Robert M. Paolini, Deputy State's Atty., for the State.

Richard E. Davis Associates, Barre, for defendant.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

BARNEY, Justice.

The defendant was found guilty by a jury of knowingly possessing a regulated drug. The case had proceeded to trial after a hearing on the defendant's motion to suppress certain evidence. The motion was denied and is one of the issues raised on the appeal. After the trial, two further motions were filed, one in arrest of judgment or for a new trial based on an allegedly prejudicial juror; and another for a new trial based on newly discovered evidence. Both motions were denied, and the motion for a new trial based on newly discovered evidence was remanded from this Court for hearing and findings which were accomplished. The motion was then again denied, and all these issues are now here.

A recital of the facts developed by the evidence is important to an understanding of the issues. There is a so-called informant involved. This person and a police officer went to the office of the state's attorney on a particular morning. The informer was searched at the police department. He was then given five dollars and driven by a detective to Elm Street in the city of Barre and instructed to go to the apartment occupied by the defendant and one Linda Thow at 114 Elm Street. He returned in a few minutes and gave the detective something that was established to be lysergic acid diethylamide, or LSD. As a result of that transaction, a search warrant was obtained and executed.

As a consequence of the search, hypodermic needles and syringes and quantities of LSD were found. On this basis, the defendant was charged with knowingly and unlawfully possessing a regulated drug, in violation of 18 V.S.A. § 4224(d) (4). At the hearing on the motion to suppress, the defendant sought to obtain the name of the informant, but the trial court upheld the state's objection. The sufficiency of the warrant was upheld and the motion to suppress denied.

At the trial the informant was called as a witness by the defendant, who elicited testimony that the informer had had a case against him disposed of through an arrangement made with the state's attorney's office. The other witness called by the defense was Linda Thow, who testified that the night before the search there were no drugs in the place they were found at the time of the search. The presence of LSD in brown coin envelopes at the time of the search was not otherwise contested.

After the verdict, the respondent sought a new trial on the basis that the foreman of the jury, according to the voir dire taken in a trial one month after this case, stated he believed a respondent guilty until proven innocent. This motion was denied after hearing. The respondent also sought a new trial based on a letter allegedly written by the informer in the presence of Linda Thow, subsequent to the jury verdict in this case. The letter purportedly sets out facts different than the facts to which the informer testified at the jury trial, and, the defendant claims that it indicates that the informer, rather than the defendant, was the guilty person.

A hearing was held at which time the informer testified that, although the signature was probably his, he had no independent recollection of any events surrounding the writing or signing of the letter. The trial court found the letter unreliable and lacking in probative value, and the supporting testimony unworthy of credit. Subsequently, findings were made and conclusions reached whereafter the motion for a new trial based on the evidence was denied.

Almost all of the issues revolve around the informer. Turning first to the claim of prejudice based on the failure of the trial court to allow disclosure, although the informant was called as a witness during the trial by the defendant, he was never officially conceded to be, or identified as, the informer by the prosecution. All attempts to do so by the defendant were objected to by the state and sustained by the trial court.

The defendant bases his first claim of error on two propositions. Both are mistaken. The first asserts that the informant was an eyewitness to the crime. This is not so. The crime charged was possession of a regulated drug and stemmed from the material found under a search warrant. The informer was not present.

The second claim of error is that there was some issue of entrapment. There is simply nothing in the evidence that indicates any police activity or action by the informer inducing the defendant to 'possess' regulated drugs. In argument the defendant has, from time to time, claimed that the evidence was 'planted', but there is simply nothing in the evidence to give such a claim any weight. The defendant chose not to take the stand in the face of evidence from the state that at the time of the search he acknowledged ownership of the seized material that justified the criminal charge.

Thus it appears there is no adequate justification for requiring disclosure of the identity of the informer, as defined in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); and McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). Additionally, as is pointed out in Stanley v. State, 19 Md.App. 508, 313 A.2d 847, 864 (1974), with the informer actually present and testifying, insofar as that testimony was desired by the defense, it was entirely available.

The Stanley case, supra, a scholarly opinion by Judge Charles E. Moylan, Jr., of the Maryland Court of Special Appeals, is especially helpful in the issues relating to the search warrant. Judge Moylan carefully delineates the constitutional requirements for search warrants more or less obscurely outlined by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and redefined by Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). His analysis of the so-called 'Aguilar test' is found by this Court to be a most accurate categorization thereof and will be resorted to in deciding this case.

It is the complaint of the defendant that the state failed to establish the reliability of the informer, and that therefore the trial judge should have granted his motion to suppress. He argues that here, too, he should have been allowed to have the informer identified so that he might establish his unreliability by examination.

The concept supporting the search warrant is probable cause, in this case, to believe that certain property evidencing criminal conduct was present at the described premise. The judgment must be made by the appropriate judicial officer as an independent and detached magistrate. Coolidge v. New Hampshire, 403 U.S. 443, 449, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Most of the problems revolve around what sort of presentation is sufficient to support the action of such a magistrate in issuing the search warrant.

The Aguilar case, supra, is usually described as having a two-pronged test. But it is important to keep in mind what is being tested. The concern is for hearsay. If an affiant comes before a magistrate and is able to present a statement supporting probable cause entirely from his own first-hand knowledge, these Aguilar and Spinelli considerations do not apply. It is the recitations of a third party to the affiant that produces the hearsay.

A clear understanding of that concern is essential in this case. The only unobserved activity by the informer here occurred when he left his police escort to enter the premises later searched, and returned. He entered those premises after having been searched for drugs and with money in hand to buy drugs. He returned in a few minutes with two tablets of LSD. He stated that he bought the drugs from the occupants of the apartment and that there were other supplies of LSD in the apartment.

The 'Aguilar tests' have been variously described, but the most lucid is found in the Stanley case, supra. There is initially the 'basis of knowledge' test. It is not concerned with the integrity or veracity of the informant, but with the actual source of the...

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    ...340 (1981); State v. Hoskins, 292 Minn. 111, 193 N.W.2d 802 (1972); Munoz v. State, 524 S.W.2d 710 (Tex.Cr.App.1975); State v. Barrett, 132 Vt. 369, 320 A.2d 621 (1974); State v. Forsyth, 13 Wash.App. 133, 533 P.2d 847 (1975); Annot., 32 A.L.R.3d 1356 The reason traditionally advanced to pr......
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    ...the art. 14 probable cause requirements have been met. See 1 Lafave, Search and Seizure, supra at 686-687, quoting State v. Barrett, 132 Vt. 369, 320 A.2d 621 (1974) ("The purpose of the search of the informer and his being escorted to the place of purchase was to eliminate both as much as ......
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