State v. Davis
| Decision Date | 01 March 1982 |
| Docket Number | No. 81-KA-1917,81-KA-1917 |
| Citation | 411 So.2d 434 |
| Parties | STATE of Louisiana v. Gary L. DAVIS. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Walter P. Reed, Abbott J. Reeves, Peter J. Garcia, Asst. Dist. Attys., for plaintiff-appellee.
George C. Ehmig, Gretna, for defendant-appellant.
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On January 22, 1981, a Grand Jury Indictment was filed against Gary L. Davis, the defendant herein, thereby charging four separate violations of La.R.S. 40:967 by the unlawful distribution of cocaine on June 2, 1980, and June 25, 1980, and the unlawful distribution of marijuana on July 22, 1980, and July 28, 1980. The defendant pled not guilty to all four counts of the indictment and filed a Motion to Compel Disclosure of the Identity of the Confidential Informant. On May 12, 1981, the trial court heard and denied defendant's Motion to Compel Disclosure of the Identity of the Confidential Informant and the defendant thereupon exercised his right to a trial by jury. The jury returned unanimous guilty verdicts against the defendant on Counts one, two, and three, and found the defendant guilty by a vote of eleven to one on Count four. On June 18, 1981, the trial court sentenced the defendant to serve a period of seven and one-half years at hard labor on each of the four counts on which he was found guilty, and ordered the sentence imposed to run concurrently. The defendant appeals his conviction arguing each of his three assignments of error.
Sergeant George Walker of the Louisiana State Police testified that as an undercover agent, he made four separate purchases of illegal drugs from the defendant while they were in the presence of an unidentified confidential informer. On June 2, 1980, at approximately 5:00 P. M., Walker was in the presence of this confidential informant when the informant pointed out the defendant as he was cleaning out his vehicle on Monroe Street in Covington. The informant indicated that the defendant was a person from whom Walker could purchase drugs. The informant introduced the defendant to Walker, and Walker asked the defendant if he could buy something. The defendant replied that he had some cocaine but only enough for himself. Walker asked if he could "score" a little of it anyway and the defendant pulled out a black pouch with a vial inside it. He then poured some white powder from the vial into the silver wrapping of an old cigarette package which he retrieved from the ground beside defendant's vehicle. Walker paid the defendant $10.00 and told him he would like to score some more if this stuff was any good. Walker subsequently placed this powder in a special envelope and turned it over to the Louisiana State Police Crime Unit. On July 22, 1980, at approximately 2:20 P. M. Walker purchased a bag of marijuana from the defendant for $20.00. On June 25, 1980, at approximately 3:20 P. M. Walker purchased cocaine from the defendant at his residence for $20.00. On July 28, 1980, at approximately 2:40 P. M. Walker purchased some hashish from the defendant for $20.00. The confidential informant was present during these three transactions. Each time Walker placed the substance in a marked envelope and submitted it to the Louisiana State Police Crime Unit for analysis. Results of the analyses revealed that the substances were cocaine, marijuana and hashish.
The defendant testified on his own behalf. He denied ever seeing Sergeant Walker before he met him in court for trial. He denied selling marijuana or cocaine to Walker or anyone else although he admitted smoking marijuana. He claimed that the police have been continually harassing him in an effort to obtain information on other dealers in narcotics and that they were trying to frame him.
"The court committed reversible error in failing to order the state, prior to trial, to disclose the identity of the confidential informant ..." The Louisiana Supreme Court has recognized the informer privilege. On the question of whether the defendant can overcome the informer privilege and learn the name of the confidential informant, the leading case of State v. Dotson, 260 La. 471, 256 So.2d 594, 1971, Cert. denied, 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173, 1972, shows that the Louisiana Supreme Court has adopted a strict Roviaro balancing test.
In State v. Rhodes, 308 So.2d 770, 1975, the Louisiana Supreme Court reiterated its holding in Dotson, emphasizing that the burden is on the defendant to show exceptional circumstances warranting disclosure.
In State v. Santos, 309 So.2d 129, 1975, the Supreme Court held that a defendant must show that disclosure of the informant's identity is essential for his defense on the merits or for his grounds for motion to suppress.
In the case of State v. Williams, 347 So.2d 184, 1977, an informant and his wife accompanied a New Orleans narcotics agent to a local bar, where the informant introduced the defendant to the agent. Pretending to use their combined resources, which was really marked money, the informant and the agent purchased heroin from the defendant. At the trial, the defense counsel repeatedly tried to learn the name of the informant, but the trial judge sustained the state's objection to this inquiry. Relying on Dotson, the court noted that defense counsel had failed to make known to the trial judge the reason for his request for disclosure of the identity of the informant, or how it would affect his defense. Since the burden is on the defendant to show exceptional circumstances which would justify disclosure, the trial judge did not abuse his discretion in denying this discovery to the defendant.
One can conclude from the foregoing that there is a strong public policy in favor of protecting the identity of confidential informants in the State of Louisiana. (For an excellent analysis of this matter, see "DEFENDANT'S RIGHT TO CONFIDENTIAL INFORMANT'S IDENTITY" by Michael D. Browers, Vol. 40, La. Law Review, P. 147, et seq.)
The state has thus followed the Roviaro case (supra) which is grounded on the "fundamental requirements of fairness". The key language in the Roviaro case is, as follows:
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Further, the courts have placed a heavy burden on the accused to specify concrete reasons why he needs to know the identity of the informant. It must also be noted that should the defendant show sufficient grounds for his requested disclosure, it will be reversible error for the trial court to fail to order such disclosure.
Roviaro and the cases which follow it have given us certain outlines in which to operate. At one end of the spectrum is the "mere tipster" cases. It is well settled that the Roviaro principle does not require disclosure and production of such an informant. At the other end of the spectrum are other cases such as Roviaro, itself, in which the informant has played a crucial role in the alleged criminal transaction, and disclosure and production of the informant are required to insure a fair trial. Additionally, the burden of proving why he needs to know the identity of the confidential informant is placed on the defendant. In other words, the defendant must convince the court that the informant may be able to give testimony which is necessary to a fair determination of the issue of guilt or innocence. Thus, the present case must be examined in the light of the outlines laid down in the Roviaro case and subsequently followed by this State Supreme Court in the cases of State v. Dotson, State v. Santos, and State v. Williams. (supra)
In the present case, the issue presented appears to be whether it was an abuse of discretion for the trial court to determine that the defendant did not meet his burden of demonstrating exceptional circumstances which would warrant disclosure of the confidential informant. The defendant argues in his brief:
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