State v. Haverty

CourtSupreme Court of West Virginia
Citation267 S.E.2d 727,165 W.Va. 164
Docket NumberNo. 13881,13881
PartiesSTATE of West Virginia v. Leslie D. HAVERTY.
Decision Date24 June 1980

Page 727

267 S.E.2d 727
165 W.Va. 164
STATE of West Virginia
Leslie D. HAVERTY.
No. 13881.
Supreme Court of Appeals of West Virginia.
June 24, 1980.

Page 728

Syllabus by the Court

1. A common law privilege is accorded the government against the disclosure of the identity of an informant who has furnished information concerning violations of law to officers charged with the enforcement of the law. However, disclosure may be required where the defendant's case could be jeopardized by nondisclosure.

2. Where the government has an obligation to identify its undercover informant or agent, its failure to do so will not ordinarily be error if the defense was already aware of the informant's identity.

3. "Subject to exceptions, it is a well-established common-law rule that in a criminal prosecution, proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times, even though they are of the same nature as the one charged, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged, unless such other offenses are an element of or are legally connected with the offense for which the accused is on trial." Syllabus Point 11, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

4. "Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any [165 W.Va. 165] prejudicial effect on the jury." Syllabus Point 2, State v. Atkins, W.Va., 261 S.E.2d 55 (1979), cert. denied, --- U.S. ----, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).

Lewis, Ciccarello, Masinter & Friedberg and Arthur T. Ciccarello, Charleston, for P. E.

Page 729

Chauncey H. Browning, Atty. Gen., Lawrence R. Frail, Asst. Atty. Gen., Charleston, for D. E.

MILLER, Justice:

The defendant, Leslie D. Haverty, seeks to have his conviction for the sale and delivery of marijuana set aside on three grounds. First, he asserts that the State was required to disclose the name of an informant who allegedly assisted its undercover agent, and that the State failed to do so. He also claims the trial court committed error in refusing to grant immunity to a defense witness who had invoked his Fifth Amendment privilege against self-incrimination. His third claim of error is that the prosecutor impermissibly questioned a defense witness regarding the defendant's prior acts of smoking marijuana.


To claim that the State failed to disclose the name of an informant is perhaps not an accurate characterization of this issue. The problem originated when the defendant asked in its motion for a bill of particulars for "(t)he identity of any person who accompanied the officer at the time of the alleged offense." The State's response was that "(n)o person accompanied the officer." A second inquiry was directed at "(t)he name and address of any undercover agent used for the purpose of either introducing the officer to the defendant or used in any aid to purchase the alleged controlled substance." The State's response was that there was no such person.

[165 W.Va. 166] At trial, the State introduced the testimony of its undercover investigating officer, Donald Sizemore, a member of the Department of Public Safety. He had operated as an undercover agent in Roane County for approximately two weeks preceding the incident involving the defendant. On cross-examination, Officer Sizemore testified that he had initially been assisted by a Marian Snider in establishing contacts in the area, but that on the night in question she had not been involved in the transaction with the defendant.

It was Officer Sizemore's testimony that on the evening in question, he met the defendant in a tavern and asked him if he had any "pot" for sale. The defendant replied that he did. The two then went outside the tavern to talk, and at this point the defendant stated that he was suspicious of the transaction, indicating that Sizemore might be a "narc" and that he was going to "check him out." The defendant then left. He returned a short time later, agreed to make the sale and took Sizemore to an automobile in the parking lot.

Officer Sizemore further testified that he got into the back seat of the car and that Haverty got in its front seat. There were three other persons in the car, two in the back and one in the front. The defendant asked the other person in the front of the car, a man called "Chubby," where the marijuana was, and Chubby replied that it was under the dashboard. The defendant then took a plastic bag from under the dashboard, measured some of the substance from it into a wrapper from a cigarette pack, and gave the wrapper to Sizemore. Sizemore then paid him $5.00. The cigarette wrapper and its contents were introduced into evidence, and the substance was identified by a State chemist as marijuana.

The defendant's witness Jarvis was one of the persons in the car during the alleged transaction, and he and the defendant related a different version of the incident. Both denied any sale or delivery of marijuana to Sizemore. Their testimony was that during the evening in question, Marian Snider, whom they both knew from [165 W.Va. 167] high school, approached them outside the tavern, asking if they had any marijuana that she could smoke. They indicated to Ms. Snider that they had some marijuana in an automobile. She told them that she had a friend who also wanted to smoke marijuana, and then brought Sizemore to the car. Haverty and Jarvis testified that the defendant rolled a cigarette from marijuana contained in a plastic bag taken from under the dashboard of the car, and that everyone present took turns smoking it. After they finished smoking, Ms. Snider and Sizemore left the car.

Page 730

The above summarized testimony shows a substantial variance in the evidence as to the presence of Marian Snider during the incident in question. Sizemore denied that she had any involvement in the transaction, while the defendant and his witness placed her at the scene.

We decline to cut the Gordian knot of this conflicting testimony as to whether the informant was actually at the scene. 1 Nor do we find it necessary to determine who falls within the category of an informant. Even were we to assume the furthest reach of the defendant's claim, that the witness Snider was an informant and that she was present during the transaction, the claim would not suffice under the law.

It is generally recognized that a common law privilege is accorded the government against the disclosure of the identity of an informant who has furnished information concerning violations of law to officers charged with the enforcement of the law. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Annot., 76 A.L.R.2d 262 (1961); McCormick, Evidence (2d ed. 1972) at 236. 2 We recognized this general rule in State ex rel. [165 W.Va. 168] Lykens v. Bouchelle, 122 W.Va. 498, 11 S.E.2d 119 (1940), and State v. Paun, 109 W.Va. 606, 155 S.E. 656 (1930). In the second syllabus of Paun, we stated:

"The proper administration of the law ordinarily forbids requiring an officer to disclose his source of information regarding a crime."

Roviaro recognized the rationale behind the rule as this:

"The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation." (353 U.S. at 59, 77 S.Ct. at 627, 1 L.Ed.2d at 644).

Other courts have acknowledged that included within the ambit of the privilege is the professional undercover informant who is a source of police intelligence on criminal activities in the community. E. g., United States v. Prueitt, 540 F.2d 995, 1004 (9th Cir. 1976); United States v. Fischer, 531 F.2d 783 (5th Cir. 1976); United States v. Tucker, 380 F.2d 206 (2d Cir. 1967); People v. Lewis, 57 Ill.2d 232, 311 N.E.2d 685 (1974); Commonwealth v. Johnson, 365 Mass. 534, 313 N.E.2d 571 (1974); cf. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).

The privilege, however, is not absolute, since disclosure may be required where the defendant's case could be jeopardized by nondisclosure. Roviaro provided the following balancing test:

"We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance[165 W.Va. 169] of the informer's testimony, and other relevant factors." (353 U.S. at 62, 77 S.Ct. at 628-29, 1 L.Ed.2d at 646).

In Lykens, supra, we made much the same point:

"(S)uch immunity from disclosure is not 'absolute', as was held in Worthington v. Scribner, 109 Mass. 487, 12 Am.Rep. 736, and other earlier decisions. Whenever it should appear to the court that the statements would tend to show the innocence of an accused person, or lessen the risk of false testimony, or otherwise be essential

Page 731

to the proper determination of a case, then a paramount public policy would require that the statements be so used. . ....

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