State v. Elliott

Decision Date03 September 1976
Citation553 P.2d 1058,276 Or. 99
PartiesSTATE of Oregon, Respondent, v. Richard Wesley ELLIOTT, Petitioner.
CourtOregon Supreme Court

Gary D. Babcock, Public Defender, Salem, argued the cause and filed briefs for petitoner.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were Lee Johnson, Atty. Gen., W. Michael Gillette, Sol. Gen., and Donald L. Paillett, Asst. Atty. Gen., Salem.

HOLMAN, Justice.

Defendant appeals from his conviction after a jury trial of the illegal sale of amphetamine, a dangerous drug. The conviction was affirmed by an opinion of the Court of Appeals. 24 Or.App. 471 546 P.2d 766 (1976). We allowed review because the reasons given in the opinion did not appear to be adequate to justify the result.

One Lewis was a paid narcotics informant for the State. He arranged the sale of amphetamine by defendant to Gard, an undercover officer, and was present when the sale was consummated. During the pendency of the case, defentant filed a motion to require the State to produce Lewis as a defense witness, representing that Lewis's testimony would be relevant to show entrapment. The motion was supported by an affidavit of defendant's attorney which included the statement that

'Mr. Lewis's continued prodding of Mr. Elliott to obtain drugs for him resulted in Mr. Elliott engaging in conduct that he would not otherwise have done and that his conduct is a direct result of police conduct.'

As a result of the hearing, the trial judge ordered

'The State (to) aid and assist defendant by furnishing defendant with all information within their control as to the present whereabouts of the said Leroy Lewis.'

At the commencement of the trial, defendant orally moved that 'the case be dismissed * * * on the grounds that they (the State) failed to produce a material witness at the time of trial,' and not on the ground that the State had failed to assist him in locating Lewis. The trial court denied the motion and the trial proceeded. It is the denial of this motion which forms the basis for the petition for review. Defendant contends he has been deprived of his right under the Sixth Amendment to the Constitution of the United States 1 to confront witnesses against him and to have compulsory process for obtaining witnesses in his favor. We shall not consider the claim of lack of confrontation since Lewis was not used as a witness against defendant. 2

The State asserts it sent Lewis out of the state to remove him from the danger of being killed as the result of his having been involved in other narcotic cases and that it had the privilege of not producing him. The issue is whether the privilege was extended to the State under the then present circumstances. The privilege involved is that of the government's to protect persons who furnish information of violations of the law to officers charged with the enforcement of the law. The purpose of the privilege is the furtherance and protection of the public's interest in effective law enforcement. The flow of information is dependent upon the protection of theose who inform. Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Known and available informants are not known for their longevity.

No fixed rule with respect to production is justifiable. The problem is one which calls for a balancing of the public's interest in protecting the flow of information against the individual's right to make his defense. Whether a proper balance renders as error the failure to require production depends upon the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informant's testimony, and other relevant factors. Where production of the informant has been shown to be essential to a fair determination of a defendant's guilt or innocence, the privilege must give way. Roviaro v. United States, supra at 60--62, 77 S.Ct. 623; State v. Cortman, 251 Or. 566, 574, 446 P.2d 681 (1969).

Defendant made no showing of facts upon which to base his claim of entrapment, although, as the person allegedly enticed, he necessarily had personal knowledge of the facts. His lawyer, not having personal knowledge, attempted to fill the woid, but this was an insufficient basis upon which to request dismissal of the charge. Defendant could personally have made as a preliminary matter, by affidavit or testimony, a prima facie showing of facts sufficient to support his defense. Cf. State v. Wright, 266 Or. 163, 167--68, 511 P.2d 1223 (1973). If, in such a situation, all it would take to secure a dismissal is a failure by the State to honor a request to produce an informant as a witness, a defendant could then be expected to make such a request in every case in the hope that the State would not take the chance of producing the informant. 3

Defendant was not demanding the informant's presence as a material witness to those facts which were the subject of proof ar defendant's trial. He claimed he wanted to establish a defense about which, in fact, there was no testimony in his trial. Despite his knowledge of the facts of the alleged entrapment and the State's inability to refute testimony relating thereto in Lewis's absence, defendant chose not to testify in his defense. Without defendant's testimony that he would not have arranged the sale of narcotics but for the suborning of Lewis, the defense of entrapment is completely impracticable. The following colloquy occurred between the court and defendant's counsel:

'THE COURT: What makes you think Mr. Lewis would testify to the truth and what makes you think he'd testify for you?

'MR. JAMES: If he were subpoenaed, Your Honor, I don't know what he's going to say obviously, but I think you're in a different situation here than you are in a case like Courtman (sic) where they're going to ask the witness to testify to the fact that he had produced the evidence, had planted it there merely to get an arrest. This case is different in...

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7 cases
  • State v. Weaver
    • United States
    • Oregon Supreme Court
    • September 3, 2020
    ...persuade us that one is required in circumstances materially different from those considered in Valenzuela-Bernal . In State v. Elliott , 276 Or. 99, 553 P.2d 1058 (1976), we considered whether the state's failure to disclose the identity of a confidential informant violated the defendant's......
  • State v. Dunning
    • United States
    • Oregon Court of Appeals
    • September 10, 1986
    ...the informant is essential to a fair determination of a defendant's guilt, the privilege to withhold must give way. State v. Elliott, 276 Or. 99, 102, 553 P.2d 1058 (1976) (citing Roviaro v. United States, 353 U.S. 53, 60-62, 77 S.Ct. 623, 627-29, 1 L.Ed.2d 639 (1957)). If, however, the que......
  • State v. Bonner
    • United States
    • Oregon Court of Appeals
    • February 12, 1986
    ...of the confidential VINs were not material to defendant's defense. A somewhat analogous situation was presented in State v. Elliott, 276 Or. 99, 553 P.2d 1058 (1976), where the issue was whether the state was required to produce at trial the confidential informant who had arranged a sale of......
  • State v. Waterbury
    • United States
    • Oregon Court of Appeals
    • February 26, 1981
    ...encourages them to perform that obligation. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); State v. Elliott, 276 Or. 99, 553 P.2d 1058 (1976); State v. Cortman, 251 Or. 566, 446 P.2d 681 (1968), cert. den. 394 U.S. 951, 89 S.Ct. 1294, 22 L.Ed.2d 487 (1969). The s......
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