State v. Batson

• Decision Date: 16 August 1973
• Docket Number: No. 19680,19680
• Citation: 261 S.C. 128,198 S.E.2d 517
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Larry Dean BATSON, Appellant.

Page 517

198 S.E.2d 517

261 S.C. 128

The STATE, Respondent, v. Larry Dean BATSON, Appellant.

No. 19680.

Supreme Court of South Carolina.

Aug. 16, 1973.

J. Reuben Long, Conway, for appellant.

Sol., J. M. Long, Jr., Conway, for respondent.

BUSSEY, Justice:

During the early morning hours of June 10, 1972, the appellant Batson, aged 19, and one Danny McCrae, aged 16, were arrested at North Myrtle Beach, South Carolina, on a charge of selling twenty-five tabs of LSD to an undercover SLED agent by the name of Donnie Gilreath. McCrae admitted his guilt and his case was disposed of in the Juvenile Court of Horry County. Batson denied his guilt but was convicted at the October term of the General Sessions Court for Horry County and sentenced to term of seven years.

While there were other witnesses who had knowledge of the events leading up to and attendant upon the alleged sale, upon the trial only Gilreath, McCrae and Batson testified as to such events. The stated facts are gleaned in part from the evidence adduced on behalf of the State and in part from that offered by the defense. McCrae testified for the appellant Batson; assumed full responsibility and exonerated Batson of any complicity in the crime.

Batson and McCrae were both from Rockingham, North Carolina, but McCrae had been living at the beach several months, and, according to the defense, Batson arrived there only the afternoon before. Both were staying at a house on the beach occupied by an acquaintance of theirs who was a relative of the owner. At some time near midnight, at a place on the beach called the Spanish Galleon, both boys were approached by two strange girls who, unknown to the boys, were informers or undercover agents for SLED. One of these girls is identified in the record only by the name of Brenda, while the other is referred to by the names of Peggy and Linda.

Each of the girls paired off with one of the boys and each sought to purchase narcotics from her companion. McCrae admittedly finally told his companion he had some narcotics hidden in a tree some distance away which he would sell, McCrae contending, however, that the substance he had was mescaline, or at least believed by him to be mescaline, rather than LSD as shown by the State's proof. As a result of the contact made by the girls, one of them called Gilreath on the telephone and he shortly thereafter arrived in an automobile accompanied by another male SLED agent, as yet unidentified. Additionally, according to the defense, an unidentified blond girl was in the Gilreath automobile, but her existence was denied by Gilreath. In any event, both boys, Brenda and Peggy-Linda joined the occupants of the Gilreath car which was driven some distance to a point where McCrae alighted, went to the tree, picked up a plastic bag and then got back in the car. The car was then driven to the house where the two boys were staying, at which place there was some counting of money and narcotics tablets, but no sale finally concluded. According to Gilreath, he wanted to give the female informers a chance to depart the scene before any arrest was made and made excuses for not promptly concluding the sale. As a result, all parties returned to the car which was driven to a motel where the two girls were staying and then driven a short distance beyond where the sale was concluded and both boys arrested.

According to Gilreath, Batson, along with McCrae, fully participated in the commission of the crime. Both McCrae and Batson testified that Batson had no part whatever in the crime, his attention throughout the course of events being intimately devoted to the girl Brenda, who, according to them, was in a bedroom with Batson at the house during the time that McCrae and Gilreath were counting the tablets, money, negotiating, etc.

The appellant was released on bond on June 12th, and at his trial, commencing on October 9, 1972, he was represented by retained counsel of known ability, long experience and high repute. There was no demand for a preliminary hearing. The indictment charged appellant with having sold the tablets of LSD to an 'Undercover SLED Agent', without naming him. After the jury was drawn but immediately before it was sworn, counsel for appellant moved to quash the indictment because the SLED agent had not been named therein. The solicitor moved to amend the indictment is clearly without any merit. The permitted agent, which motion was granted and the motion to quash denied. Counsel then moved to continue the case beyond the term, which motion was denied but a continuance granted until the following day.

The appellant's first contention is that the motion to quash the indictment should have been granted and the amendment thereto not permitted. This contention is clearly without any permitted. The permitted amendment did not in any sense change the nature of the offense charged and was clearly permissible under the provisions of Sec. 17--410 of the South Carolina Code. He next contends that he was entitled to a continuance. It is elementary that motions for continuance are addressed to the sound discretion of the trial judge and the appellant fails to demonstrate wherein there was any abuse of discretion on the part of the trial judge in denying his motion for a continuance.

In the course of cross-examination of Gilreath, counsel for appellant sought to elicit from him the identity of the two girl agents or informers and the other male SLED agent who were present at the time. The solicitor objected, contending that the identity of the undercover agents was privileged information which the State did not have to disclose. The jury was excused and a colloquy between the court and counsel ensued, in the course of which the court expressed disappointment that neither counsel was prepared to cite any authority for his view. In the course of the colloquy, Gilreath told the court that the two girls were not commissioned agents of SLED but were 'just informers' and that they were the only two whose identity he felt compelled to protect. In answer to a question by the court, he stated that he did not object to divulging the name of the male undercover agent who accompanied him. It was stated by the solicitor that the full identity of these two girls was unknown to Mr. Gilreath. Gilreath himself testified that they picked up temporary informers in every town they worked; that he had worked with Linda only two or three days and did not know her last name. He further testified that he had known Brenda a 'good while', but inferentially, he did not know her last name either.

The court ruled that Gilreath could not be required to disclose the identity of the two girl informers beyond their first names by which they were known and called. Appellant's challenge of this ruling raises the most serious question on this appeal. At common law the prosecution in a criminal case is ordinarily privileged to withhold from an accused disclosure of the identity of persons who furnished information relative to violations of law to officers charged with the enforcement thereof. Such privilege is founded upon public policy to protect effective law enforcement, but it is not absolute and it subject to certain limitations and exceptions. The issue presented apparently is one of novel impression in this jurisdiction but there are numerous decisions from other jurisdictions, both state and federal, dealing with this rule of privilege, its application and exceptions thereto. A quite comprehensive annotation is contained in 76 A.L.R.2d 262. See also cases collected in footnotes, 23 C.J.S. 786, et seq., Criminal Law, Sec. 954.

A leading case is that of Roviaro v. United States, 353 U.S. 53, 77...