Little v. Commonwealth

553 S.W.3d 220
Missouri Court of Appeals·Decided August 16, 2018·No. 2017-SC-000112-MR·Published·Cited by 3 cases

Opinion

OPINION OF THE COURT BY JUSTICE VANMETER

*223Donte Little appeals as a matter of right1 from the Kenton Circuit Court's judgment convicting him of two counts of trafficking in a controlled substance in the first degree (less than two grams of heroin), two counts of trafficking in a controlled substance in the first degree (more than two grams of heroin), one count of complicity to trafficking in a controlled substance in the first degree (more than two grams of heroin), and sentencing him to 20 years' imprisonment. For the following reasons, we affirm.

I. BACKGROUND.

The undercover narcotics investigation in this case was conducted by Detective David Hoyle and confidential informant D.N., who was working for the Covington Police Department making undercover heroin buys to "work off" her prior drug charges. D.N. was familiar with Little because she had bought heroin from him previously. With respect to this case, D.N. made a total of five undercover buys from Little, each transaction being recorded by a concealed audio and video recording equipment with which D.N. was outfitted, and a transmitter that allowed police to monitor the transaction in real time. After a three-day trial, the jury convicted Little on all five counts for which he had been indicted. This appeal followed.

II. ANALYSIS.

a. Commonwealth's KRE 508 Disclosure of Confidential Informant's Identity.

Little asserts that the Commonwealth violated the notice requirement set forth in KRE 2 508 by waiting until 40 hours prior to trial to disclose D.N.'s identity, in violation of the trial court's order directing the Commonwealth to disclose the informant's identity 48 hours before trial. Little had filed a pre-trial motion asking the court to direct the Commonwealth to provide him with the name of the informant at least 30 days prior to trial, and for transcripts of the informant's prior testimony from any case in which she had testified in Kenton County in the past three years. The court denied his motion, but did order the Commonwealth to disclose the informant's name to Little 48 hours prior to trial, which the Commonwealth stated was its typical practice. The court further found that since Little had not been declared indigent, he could obtain a copy of the recording of any testimony of public record in Kenton County through the Clerk's office.

On the morning of trial, December 14, 2016, Little moved to exclude the informant's testimony due to the late disclosure. The Commonwealth informed the court that it had attempted to contact Little's counsel numerous times by phone during business hours on December 12, 2016 to provide the informant's name and, when unable to reach counsel by phone, emailed him the name of the informant around 4:20 p.m. that afternoon, approximately eight hours later than the 48-hour disclosure time ordered by the court. Little's counsel conceded that he did not expect the Commonwealth to leave the informant's name on a voicemail, but questioned why the Commonwealth waited until 4:20 p.m. to email him *224when it could have done so earlier. The trial court denied Little's motion to exclude. Little now argues on appeal that he was prejudiced as a result, and deprived of his due process right to prepare a defense, since the eight-hour delay reduced the time he had to go to the Kenton County Clerk's office and search through three years of drug trial cases to find those in which D.N. had been a confidential informant, and watch the pre-trial and trial CDs. Little also challenges the trial court's imposition of the 48-hour disclosure period to begin with, instead of the 30-day disclosure period he requested.

This Court reviews a trial court's evidentiary rulings for an abuse of discretion. Dunlap v. Commonwealth, 435 S.W.3d 537, 553 (Ky. 2013). "The test for abuse of discretion is whether the trial [court's] decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id. at 554 (internal quotations and citation omitted).

KRE 508 creates a privilege by which the Commonwealth may properly refuse to disclose the identity of an informant, and KRE 508(c) delineates exceptions to the privilege. One of those exceptions is when the informant is a witness for the state. Here, since D.N. was a witness for the Commonwealth, disclosure of her identity was required. KRE 508(c)(1). Notably, KRE 508 places no time constraint on the disclosure. This Court has held, " KRE 508 reflects the decision of the United States Supreme Court in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed. 2d 639 (1957), which indicates that a proper balance regarding nondisclosure must depend on the particular circumstances of each case, taking into consideration the crimes charged, the possible defenses, the possible significance of the informer's testimony and other relevant factors." Taylor v. Commonwealth, 987 S.W.2d 302, 304 (Ky. 1998). In Roviaro, the Court eschewed rigid rules dictating disclosure, explaining "[t]he 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." 353 U.S. at 62, 77 S.Ct. at 628-29.

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Little v. Commonwealth, 553 S.W.3d 220 (Mo. Ct. App. 2018).

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