Taylor v. State

• Decision Date: 06 October 1975
• Docket Number: No. 50574,3,Nos. 1,2,50574,s. 1
• Citation: 220 S.E.2d 49,136 Ga.App. 31
• Parties: J. M. TAYLOR v. The STATE
• Court: Georgia Court of Appeals

Page 49

220 S.E.2d 49

136 Ga.App. 31

J. M. TAYLOR v. The STATE.

No. 50574.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Oct. 6, 1975.

John E. Wiggins, Clifton M. Patty, Jr., Ringgold, for appellant.

Earl B. Self, Dist. Atty., Jon B. Wood, Asst. Dist. Atty., Summerville, Ross Hatcher, III, Rossville, for appellee.

PANNELL, Presiding Judge.

1. 'The fact that the informant is a witness is not controlling where such evidence is not necessary to obtain a conviction. United States ex rel. Abbot v. Twomey, 460 F.2d 400, 402(2). In Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 1 L.E.2d 639, it is 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. 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 of the informer's testimony, and other relevant factors," Estevez v. State, 130 Ga.App. 215, 216(2), 202 S.E.2d 686, 687. See also, Welch v. State, 130 Ga.App. 18, 19(3), 202 S.E.2d 223.

2. Where a person merely takes an undercover police officer to a location and identifies, or introduces the officer to the defendant, and the officer arranges for and buys contraband from the defendant, and the person witnesses such sale, or alleged sale, such person is an informer and not a 'decoy' and a disclosure of his name, address, etc., to the defendant is not required as a matter of law under Code § 38-1102, but rests in the discretion of the trial judge, balancing the rights of the defendant and the rights of the State under all the facts and circumstances. Welch v. State, 130 Ga.App. 18, 19(3), 202 S.E.2d 223, supra; Estevez v. State, 130 Ga.App. 215, 216(2), 202 S.E.2d 686, supra; United States v. Davis, 5 Cir., 487 F.2d 1249; United States v. Clark, 482 F.2d 103, citing on p. 104, United States v. Herrera, 5 Cir., 1972, 455 F.2d 157, 158; United States v. Mendoza, 5 Cir., 1970, 433 F.2d 891, 894; United States v. Tsoi Kwan Sang, 5 Cir., 1969, 416 F.2d 306, 309; United States v. Acosta, 5 Cir., 1969, 411 F.2d 627, 630; Miller v. United States, 5 Cir., 1960, 273 F.2d 279, 281.

3. However, where such person either prior to or at the time thereof makes the arrangements with the defendant for the sale of the contraband by the defendant to the police officer he becomes a participant whose identity may, under proper circumstances, be required to be disclosed to defendant as material to his defense; and particularly so where the arrangements for sale are made by such person over the telephone with the defendant in a manner and circumstances unknown to anyone other than such person and the defendant, and the defendant pleads entrapment as a defense. See, United States v. Soles, 2 Cir., 482 F.2d 105; United States v. Russ, 2 Cir., 362 F.2d 843; Lopez-Hernandez v. United States, 9 Cir., 394 F.2d 820.

4. Where, under the circumstances disclosed in Division 3 above, a motion for disclosure is made by the defendant prior to trial and the defendant's only asserted defense at the hearing on the motion is that he was not the person making the alleged sale, in effect a defense of mistaken identity, we cannot say the trial court abused its discretion in overruling the defendant's motion for disclosure. Compare Lopez-Hernandez v. United States, 2 Cir., 394 F.2d 820, supra.

Judgment affirmed.

DEEN, P.J., and QUILLIAN, CLARK, STOLZ, WEBB and MARSHALL, JJ., concur.

BELL, C.J., and EVANS, J., concur in the judgment only.

Only Division 1 requires elaboration.

The defendant was charged in a four-count indictment with violation of the Georgia Drug Abuse Control Act and the Georgia Uniform Narcotics Drug Act, involving the possession, sale and distribution of marijuana and cocaine. Upon arraignment, the defendant pled not guilty and filed his motion for disclosure of the identity of an informant or decoy, the motion alleging his name and identity were unknown and that he participated in the purchase of the marijuana and cocaine by a G.B.I. Agent and that the defendant needed the name, address and other identity so he could have the unknown as a witness 'to establish affirmative defenses.' On the hearing, defendant's attorney stated the defendant took the position that no such transaction as charged took place, that defendant never 'sold drugs to anybody' and had no defense 'other than that,' as he did not remember where he was on the day the crime was charged to have been committed, and could not establish an alibi. And when the court inquired if defendant claimed entrapment, the following colloquy occurred: Defendant's attorney: 'Well, your honor, we don't have sufficient facts to do so.' The Court: 'You can't claim entrapment unless you admit he sold it, and also that he only sold it because he was entrapped, that's the only way.' Defendant's Attorney: 'We are not admitting that he made the sale, but at the same time, we would like to be able to discuss with these two (sic) other witnesses some facts in the case, and in the event they testify to that, we might have the affirmative defense of entrapment. Now, we have no defense whatsoever, we are left at the mercy of these agents, except that we deny that the transaction took place.'

The only evidence offered at the hearing was the testimony of a Georgia Bureau of Investigation Undercover Agent. He testified that on the day in question he received information from the G.B.I. Headquarters that a Detective Black of the Catoosa County Sheriff's Department had two informers that would 'work drugs' for the officers, at which time the witness made an appointment to meet them at a definite location that night. The witness, with another special G.B.I. Agent, met with Detective Black and took the two informants into their vehicle and started driving around looking for different suspects for purchasing drugs in that County. They proceeded to one location at which time the other Special Agent and one of the informants were let out of the car. The informer remaining in the car with the witness went to a telephone and told witness he was going to call John Taylor and see if he could 'set up' some cocaine for the witness. The witness did not hear the telephone conversation, but the informant came back to the automobile and they left and went up to what was called Happy Top, and on the way to the location the informant advised the witness that he had set up a buy for some cocaine but he didn't know how much, as well as some marijuana. They went up to the location on Happy Top and entered what appeared to be a combination living room and dining room. The informant introduced the witness 'to John Taylor, a black male, approximately 6 feet, 4 inches, weighing 200 pounds.' The three talked a little and the informant told Taylor that the witness was the one who wanted to buy the cocaine and marijuana. Taylor left the living room section where there were several other young people, both male and female, black and white, having a party or something, and then Taylor returned with a bag and gave the bag to the witness. The informant 'was standing right there.' The witness examined the bag and inside the bag was the marijuana and cocaine. The witness then discussed price with the defendant and while this discussion was going on, the informer 'was standing there.' The witness took the money and placed it on a coffee table and the defendant bent over and picked it up. The witness did not know whether anyone saw him put the money on the coffee table or not, or whether the informant saw him put the money down or saw what was in the bag at the time, although he was present in the room. After making the purchase the witness and the informant left. On cross-examination the witness again reiterated his statement that he could not say whether the informant saw the transaction take place, although he was in the room. He also testified that the other people in the room could have seen the transaction as well as the informant, but he was unable to state whether anyone was looking at the time of the transaction.

We are not here concerned with clear cases where the informer has no connection with the occurrence constituting the crime charged (Hodges v. State, 98 Ga.App. 97, 105(7), 104 S.E.2d 704; Anderson v. State, 72 Ga.App. 487(4), 34 S.E.2d 110) or as to exigent circumstances surrounding a search and seizure (Scull v. State, 122 Ga.App. 696, 178 S.E.2d 720), but with those cases where the informer is at least a witness or present, or more, as to the occurrence charged as a crime.

The older and more recent decisions of this court are in hopeless conflict. It is our opinion the older cases should be overruled. The more recent cases are those cited in Headnote 1, above. The older cases are Crosby v. State, 90 Ga.App. 63, 82 S.E.2d 38; Roddenberry v. State, 90 Ga.App. 66, 82 S.E.2d 40, and Smallwood v. State, 95 Ga.App. 766(1), 98 S.E.2d 602. In Butler v. State, 127 Ga.App. 539, 540(2), 194 S.E.2d 261, 263, these cases were distinguished in the following language: 'Thus in the cited cases, and the cases upon which they rely, the 'decoy' took an active part in the offense by acting as the purchaser in an illegal sale of liquor, opium, or counterfeit currency, for which transactions the seller was prosecuted, rendering the 'decoy' a material witness to the offense charged.' That distinction was again made (following Butler v. State) in Welch v. State, 130 Ga.App. 18, 19, 202 S.E.2d 223(3), supra. If these earlier cases are not so distinguishable then there is a conflict between these earlier decisions and Butler v. State, 127 Ga.App. 539, 194 S.E.2d 261, supra, Welch v. State, 130 Ga.App. 18, 202 S.E.2d 223, supra, and Estevez v. State, 130 Ga.App. 215, 202...