State v. Gee

• Decision Date: 24 April 1974
• Docket Number: No. 19812,19812
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Levi GEE, Appellant.

Page 727

204 S.E.2d 727

262 S.C. 373

The STATE, Respondent, v. Levi GEE, Appellant.

No. 19812.

Supreme Court of South Carolina.

April 24, 1974.

Richard G. Dusenbury, Florence, for appellant.

Sol. T. Kenneth Summerford, Florence, Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Robert M. Ariail and Staff Atty. Stephen T. Savitz, Columbia, for respondent.

MOSS, Chief Justice.

Levi Gee, the appellant herein, was tried and convicted at the 1973 March Term of the Court of General Sessions for Florence County, of having in his possession and the selling of a quantity of heroin, a second offense, in violation of Section 32--1510.49 of the 1962 Code, as amended. At the time of the trial the appellant was serving a two year sentence, having been convicted of the possession of heroin at a previous trial at the 1973 January Term of the Court of General Sessions for Florence County. This appeal followed.

It appears from the testimony of one Adolphus Harris, an agent for the South Carolina Law Enforcement Division assigned to the Bureau of Narcotics and Dangerous Drugs, that at about 2:00 a.m. on May 5, 1972, he, being at the time accompanied by an informer, bought three $6.00 bags of heroin from the appellant in the city of Florence, South Carolina. It also appears from the testimony that the informer was one Barbara Whitely and that she corroborated the testimony of Harris as to the purchase of the heroin from the appellant.

The appellant contends that it was prejudicial error for the State's chief witness, Harris, to conceal from him his identity and the name he was registered under at the Francis Marion Hotel in Florence, South Carolina, on May 5, 1972.

It appears from the record that Harris, the principal prosecution witness, gave his correct name when he testified in this trial, together with his place of residence. However, it does appear that agent Harris was in the city of Florence for more than three months conducting an intensive undercover anti-drug campaign, during which he used several different names. He testified that he did not remember how many nights he spent at the Francis Marion Hotel nor the name under which he registered on May 5, 1972. The appellant never, at any time, made any motion or requested the trial judge to require the State to give him the name under which Adolphus Harris was registered at the Francis Marion Hotel on May 5, 1972. Consequently, no ruling was made.

It is well settled that an issue which has not been presented to or passed upon by the trial judge will not be considered on appeal. State v. Fleming, 254 S.C. 415, 175 S.E.2d 624. It follows that this question is not properly before us for decision.

The appellant contends that 'reversible error was committed when the State knowingly sponsored the witness Barbara Whitely who gave perjured testimony as to discontinued prosecutions against her going to her credibility, motive, duress, and bias, and in failing to affirmatively disavow or effectively repudiate said testimony.'

The question sought to be raised by the foregoing exception was not presented to or passed upon by the trial judge, and we will not consider such on appeal. Only matter that has been ruled on below can be reviewed, otherwise, the appellate court would be exercising original jurisdiction rather than being a reviewing court. Since the trial judge was not requested to rule upon the foregoing question, and made no ruling thereabout, it is not properly before this Court for consideration. Elliott v. Page, 98 S.C. 400, 82 S.E. 620, and McCall v. State, 257 S.C. 93, 184 S.E.2d 341.

The appellant charges the trial judge with error in failing to promptly grant his motion, made immediately prior to the trial, to produce the confidential informer who worked with SLED agent Harris.

The general rule is that the State, in a criminal case, is ordinarily privileged to withhold from an accused the identity of the persons who furnished law enforcement officers with information relative to violations of the law; but such rule is not absolute and is subject to limitations and exceptions. The burden was upon the accused to show facts and circumstances giving rise to an exception to the privilege against disclosure, and there must be timely request therefor. An exception to the general rule is that the identity of an informer must be disclosed whenever the informer's testimony may be relevant and helpful to the accused's defense. State v. Batson, 261 S.C. 128, 198 S.E.2d 517. The appellant made no such showing before the trial judge, who properly denied this request. However, it appears that during the course of the trial the State voluntarily called the informer, Barbara Whitely, as a witness, and she corroborated the testimony of Harris as to his purchase of heroin from the appellant.

Barbara Whitely was fully cross-examined by counsel for the appellant, and she admitted that she had been arrested for forgery and the giving of worthless checks. She further admitted that she was living with a man without the benefit of clergy and that she and her paramour were at one time drug users. It thus appears that if there was error on the part of the trial judge in his refusal of the motion to produce the confidential informer, such was harmless because she was produced and her previous conduct and activities were fully explored and developed.

When the informer, Barbara Whitely, was called as a witness, the appellant moved for a continuance or a temporary recess of the trial so that he could make preparation for effective cross-examination. The motion for a continuance was denied, but the trial judge did grant a temporary recess. The appellant alleges error in this connection.

We have held that the granting or the refusal of an adjournment or suspension of a trial of a criminal case rests in the sound discretion of a trial judge. State v. Evans, 202 S.C. 463, 25 S.E.2d 492. There was no abuse of discretion here.

The appellant charges the trial judge with error in refusing to permit him to cross-examine the witness Harris on prior inconsistent statements and on matters of partiality, bias, interest, and veracity.

It appears that the appellant here had been previously tried and convicted of the possession of herion. Counsel for the appellant claims that at the prior trial he elicited from the witness Harris that (1) he had made 600 drug cases without loss, (2) he conceived himself as being 'an angel of God' in prosecuting drug cases, and (3) the only cure for a drug addict was 15 years in prison. Counsel for the appellant attempted, in the instant case, to cross-examine Harris as to these alleged former statements, to which the State objected. The trial judge sustained the objection of the State. The appellant then moved to incorporate the entire transcript of the previous trial as evidence in this case. In refusing this motion the trial judge ruled that the appellant had the right to contradict the witness provided he laid the proper foundation therefor.

Immediately following the foregoing ruling of the trial judge, counsel for the appellant propounded three questions to the witness Harris, as follows: (1) 'And did you not make the statement no less than two months ago that you have in effect brought over six hundred cases without losing a one?' (2) 'Now do you not consider yourself as an angel of God in this prosecution?' (3) 'Can any drug addict be cured?' The trial judge sustained the objection of the State to these questions, and he committed no error in so doing, because the answers to these questions would have no bearing upon any issue in this case.

What we said in State v. Bass, 242 S.C. 193, 130 S.E.2d 481, is here pertinent.

'It is well settled that the extent of cross-examination of a witness is within the trial Judge's discretion and a wide latitude is allowed to test the witness' memory, bias, prejudice, interest or credibility. In State v. Maxey, 218 S.C. 106, 62 S.E.2d 100, the rule is stated as follows: '* * * The general range and extent of cross...