State v. Tamez

• Decision Date: 24 February 1982
• Docket Number: No. 14715,14715
• Citation: 290 S.E.2d 14,169 W.Va. 382
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Michael M. TAMEZ.

Page 14

290 S.E.2d 14

169 W.Va. 382

STATE of West Virginia v. Michael M. TAMEZ.

No. 14715.

Supreme Court of Appeals of West Virginia.

Feb. 24, 1982.

Dissenting Opinion April 6, 1982.

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." Syl. pt. 1, State v. Haverty, W.Va., 267 S.E.2d 727 (1980).

2. "A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that plaintiff was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side." State v. Stewart, W.Va., 239 S.E.2d 777, 782 (1977).

3. When the State in a criminal action refuses to disclose to the defendant the identity of an informant, the trial court upon motion shall conduct an in camera inspection of written statements submitted by the State as to why discovery by the defendant of the identity of the informant should be restricted or not permitted. A record shall be made of both the in court proceedings and the statements inspected in camera upon the disclosure issue. Upon the entry of an order granting to the State nondisclosure to the defendant of the identity of the informant, the entire record of the in camera inspection shall be sealed, preserved in the records of the court, and made available to this Court in the event of an appeal. In ruling upon the issue of disclosure of the identity of an informant, the trial court shall balance the need of the State for nondisclosure in the promotion of law enforcement with the consequences of nondisclosure upon the defendant's ability to receive a fair trial. The resolution of the disclosure issue shall rest within the sound discretion of the trial court, and only an abuse of discretion will result in reversal. W.Va.R.Crim.P. 16(d)(1).

4. "[T]he possession and delivery (transfer) of a controlled substance are separate offenses, possession being an offense pursuant to W.Va.Code, 60A-4-401(c) [1971] and delivery or possession with the intent to deliver being an offense pursuant to W.Va.Code, 60A-4-401(a) [1971]." State v. Rector, W.Va., 280 S.E.2d 597, 605 (1981).

Stephen W. Moreland, Romney, for Michael M. Tamez.

Chauncey H. Browning, Atty. Gen. and Thomas N. Trent, Asst. Atty. Gen., Charleston, for the State.

McHUGH, Justice:

This action is before this Court upon the petition of Michael M. Tamez (hereinafter "defendant") for an appeal from his 1978 felony conviction in the Circuit Court of Hampshire County, West Virginia, of the offense of delivery of a controlled substance. On October 18, 1978, the defendant was sentenced to imprisonment for a term of not less than one nor more than 15 years. ¹ This Court has before it the defendant's petition for a writ of error, all matters of record and the briefs filed by counsel.

On September 5, 1978, a Hampshire County grand jury returned an indictment charging that the defendant in June, 1978, "... did unlawfully and feloniously deliver and possess with intent to deliver, a controlled substance, to wit: Oxycodone ..." in violation of the West Virginia Uniform Controlled Substances Act. ² On September 21, 1978, the defendant was brought to trial upon his plea of not guilty. On that date, the jury found the defendant guilty of "... delivery of oxycodone, a controlled substance, as charged in the indictment." The defendant's subsequent motions for a new trial were denied by the circuit court.

The record indicates that on the evening of June 16, 1978, a confidential informant and Trooper G. N. Griffith of the West Virginia Department of Public Safety met with the defendant in Romney, Hampshire County, West Virginia. At that time, Trooper Griffith was working as an undercover narcotics agent. Subsequently, the three drove to the residence of the defendant. Upon leaving the defendant's residence, the defendant displayed to the informant and Trooper Griffith a pipe allegedly filled with marihuana. The pipe was lit and passed among the parties, Trooper Griffith testifying subsequently that he simulated the smoking of marihuana. The defendant further displayed five yellow tablets.

Upon returning to Romney, the three entered the photography studio of the defendant's father. At the studio, the defendant sold two of the tablets for two dollars each to Trooper Griffith. Those tablets were subsequently identified as containing oxycodone, a controlled substance. The confidential informant did not witness the actual sale of the tablets to Trooper Griffith. The evidence further indicates that while in the studio the defendant dissolved a tablet and injected himself in the arm with the substance. The parties then left the studio.

At trial, the defendant submitted evidence to the effect that his possession of the tablets in question containing oxycodone was pursuant to a medical prescription and therefore lawful. Furthermore, the defendant at trial relied upon the theory of entrapment. The defendant contended that while under the influence of drugs, he was coaxed by Trooper Griffith into making the illegal sale.

The defendant contends before this Court (1) that the jury verdict was contrary to the weight of the evidence, (2) that the circuit court committed error in failing to require the State to disclose the identity of the confidential informant, (3) that the circuit court committed error in failing to give certain instructions offered by the defendant, (4) that a conflict exists between the indictment and the verdict of the jury and (5) that the circuit court committed error in denying the motion of the defendant for a new trial, that motion being based upon newly discovered evidence.

Nevertheless, we disagree with the contentions of the defendant and affirm his conviction. For purposes of discussion, some of these contentions will be combined.

I

As indicated above, the defendant contends that the circuit court committed error in failing to require the State to disclose the identity of the confidential informant. The defendant further contends that as a result of newly discovered evidence he is entitled to a new trial. The newly discovered evidence consists of the sworn, written statement of the confidential informant. That statement was obtained by defense counsel subsequent to the defendant's conviction.

The defendant asserts that the nondisclosure of the identity of the confidential informant during the proceedings in circuit court violated his federal and state constitutional right to confront his accusers. ³ Furthermore, the defendant asserts that, having learned the nature of the informant's probable testimony, a new trial of the defendant could result in an acquittal. However, we find no merit in either assertion of the defendant.

In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the petitioner was convicted of (1) selling heroin to "John Doe," a confidential informant, and (2) facilitating the concealment of heroin after illegal importation into the United States. During the transaction in question, a police officer, while hiding in the trunk of the informant's automobile, overheard the dialogue between the informant and the petitioner concerning the heroin sale. A second police officer observed the transaction from a distance. These officers testified against the petitioner at trial.

In Roviaro, the trial court permitted the government to refuse to disclose to the petitioner the identity of the confidential informant. The Supreme Court of the United States reversed, however, holding that nondisclosure of the informant's identity, under the circumstances, constituted reversible error.

The Supreme Court in Roviaro recognized the general privilege of the government to withhold from disclosure the identity of persons who furnish information of violations of law to police officers. ⁴ However, the Court held that under the circumstances of the transaction in question, the privilege did not apply. The Court noted that the confidential informant was the sole participant, other than the petitioner, in the transaction. As the Court stated:

Finally, the Government's use against the petitioner of his conversation with John Doe while riding in Doe's car particularly emphasizes the unfairness of the nondisclosure in this case. The only person, other than the petitioner himself, who could controvert, explain or amplify [the officer's] report of this important conversation was John Doe. Contradiction or amplification might have borne upon petitioner's knowledge of the contents of the package or might have tended to show an entrapment. 353 U.S. at 64, 77 S.Ct. at 629.

In Roviaro, the Court declined to establish an absolute rule with respect to the disclosure by the government of confidential informants. As the Court stated:

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....