Wilson v. State

• Decision Date: 13 July 1993
• Docket Number: No. A93A0196,A93A0196
• Citation: 433 S.E.2d 703,209 Ga.App. 436
• Parties: WILSON v. The STATE.
• Court: Georgia Court of Appeals

Page 703

433 S.E.2d 703

209 Ga.App. 436

WILSON v. The STATE.

No. A93A0196.

Court of Appeals of Georgia.

July 13, 1993.

Hine, Carroll & Niedrach, Paul T. Carroll III, Rome, for appellant.

Stephen F. Lanier, Dist. Atty., Tambra P. Colston, Asst. Dist. Atty., for appellee.

SMITH, Judge.

Alfred Lee Wilson was convicted of possession of cocaine with intent to distribute, and he appeals from the denial of his motion for new trial. His sole enumeration of error is the failure of the trial court to grant his pretrial motion, renewed at the close of the State's case, to compel the State to reveal the identity of a "witness-informant" based on Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). See generally Thornton v. State, 238 Ga. 160, 231 S.E.2d 729 (1977).

In August 1989, the Georgia Bureau of Investigation (GBI) began conducting undercover drug operations in and around Rome, Georgia. A confidential informant introduced GBI agents to suspected drug dealers. The agents would attempt to make drug purchases from persons implicated by the informant. If agents succeeded in purchasing controlled substances from a particular suspect, arrest was postponed in order to avoid compromising the success of continuing operations in the area.

On August 17, 1989, the informant and Agents Scott Whitley, Cathy Sapp (nee Christensen), and Cheryl Bowers travelled to a certain residence in Rome to purchase drugs. Agent Whitley testified that the informant exited the vehicle, approached the suspect's residence at 617 Calhoun Avenue, and arranged a transaction. Agent Whitley ascertained the street address on the day of arrest by its relation to the "Country Cupboard" store across the street.

Sapp, unlike Whitley, did not recall anyone leaving the vehicle before the suspect approached it, but did recall that he approached "from his residence." Ms. Sapp never testified, expressly or impliedly, that the residence from which appellant approached was in fact 617 Calhoun Avenue, as did Whitley. Agent Bowers, unavailable when appellant was tried, did not testify. Agent Whitley ultimately purchased cocaine from a person identified by the informant as Alfred Turner, a/k/a "Big Al."

The following April, the GBI concluded its operations and set out to arrest those from whom they had purchased drugs during the past several months. Agent Whitley, along with Sergeant Stanley Sutton of the Floyd County Police Department, attempted to locate the person known as Al Turner. They first tried the home believed by Whitley to be "Big Al's" residence, but to no avail. Sergeant Sutton then realized that Agent Whitley's description of "Al Turner" matched the description of appellant, Alfred Lee Wilson. Sergeant Sutton also knew that appellant lived at 617 Calhoun Avenue, that he worked at the local Salvation Army store, and that he was known as "Big Al."

Sergeant Sutton took Agent Whitley to Wilson's place of employment, and Agent Whitley identified Wilson as the person who sold him drugs on August 17. Agent Sapp, also present during the August transaction, likewise identified him while he was being booked at the Floyd County Jail. Both Whitley and former agent Sapp positively identified appellant at trial.

Wilson's defense at trial was that a man named "Al Turner," and not Wilson, sold the cocaine on the occasion in question, exactly as the unnamed informant told police at the time. During cross-examination of former Agent Sapp, she was shown a mug shot of a man later identified as "Al Turner," who, like Wilson, could be described as a large black male of approximately Wilson's age, living in the general vicinity of Calhoun Avenue at the time of the August transaction. Ms. Sapp's first words upon seeing the photograph on the witness stand were, "I don't know who this is." She commented on the poor quality of the photograph and stated that the person in the photograph "could be anyone." Ms. Sapp ultimately conceded, however, that the mug shot of Turner might or might not be of Wilson. Appellant testified on his own behalf and also offered alibi witnesses in furtherance of his mistaken identity defense. Finally, we note that almost eight months passed between crime and arrest, and over two-and-one-half years between arrest and trial.

The question raised is whether the trial judge erred as a matter of law in refusing to compel the state to reveal the identity of its informant. Roviaro v. United States, supra, provides that, pursuant to a proper "Brady" motion, "[w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of...