State v. Minson

791 S.W.2d 868, 1990 Mo. App. LEXIS 813, 1990 WL 68150
CourtMissouri Court of Appeals
DecidedMay 22, 1990
DocketNo. 56668
StatusPublished
Cited by1 cases

This text of 791 S.W.2d 868 (State v. Minson) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Minson, 791 S.W.2d 868, 1990 Mo. App. LEXIS 813, 1990 WL 68150 (Mo. Ct. App. 1990).

Opinion

STEPHAN, Judge.

Randy Gene Minson appeals from the judgment of the trial court entered after a jury found him guilty of the sale of marijuana, in violation of § 195.020 RSMo 1986. The trial court sentenced him to five years’ imprisonment. We affirm.

On June 3, 1986, William Edwards, an undercover narcotics officer, received a telephone call from a confidential informant. He met the informant and together they went to the apartment of Jimmie Wof-ford in Farmington, Missouri, arriving sometime after midnight. The informant, a woman, introduced the officer to Wofford whom she knew. Wofford, in turn, introduced appellant to the officer. They talked briefly concerning Wofford’s and appellant’s activities earlier in the day which involved the use of an all-terrain vehicle. The officer then asked them if they had any marijuana for sale. Appellant said something to Wofford and then, from a table next to where Wofford was sitting, Wofford pulled out two plastic bags of marijuana and gave them to appellant. Appellant handed the bag to the officer and told the officer each bag contained an “OZ”, slang for an ounce, and that he wanted $100 for either bag. Officer Edwards selected the heavier bag and gave appellant $100 cash. Appellant and Edwards discussed whether appellant would be able to sell the officer more marijuana at another time. Officer Edwards and the informant then left.

When the officer was outside, he observed a pick-up truck with an all-terrain vehicle in back. He noted the license number of the truck. A subsequent check on the vehicle disclosed the names of appellant and his father were listed as the truck’s owners.

The testimony of Jimmie Wofford was substantially the same. Wofford had been a friend of appellant’s for more than a year. He added that he had first seen the marijuana in appellant’s pick-up truck earlier that day when they had been out “four-wheeling” in the all-terrain vehicle on the Castor River. On their way back, they discussed selling the marijuana. Appellant asked Wofford if he knew anyone interested in buying. Wofford told appellant that he thought he could help appellant. Wof-ford recalled that a telephone call was made about selling the marijuana, but could not remember that he made the call. He was also vague about when and where the telephone conversation occurred. He did acknowlege it was not made at his house because he had no telephone. However, he admitted the possibility that he was the only one who could have called the informant, a woman whom he had met at a dance and known only a short time, since appellant did not know the informant.

When appellant and Wofford returned home from the river, they went first to the house of appellant’s great aunt where he lived. After appellant showered, they went to Wofford’s place. Appellant brought the marijuana inside Wofford’s apartment. His version of the sale that evening in his apartment closely tracked Officer Edward’s account.

Appellant was subsequently arrested and charged for sale of marijuana. Wofford, also arrested and charged, received probation for his part in any criminal activity. Appellant’s first trial resulted in a mistrial. At his second trial, although appellant did not testify, he presented an alibi defense, based on the testimony of his wife (his fiancee at the time of the drug sale) and his great aunt with whom he lived.

Appellant raises four issues on appeal challenging the non-disclosure of the [870]*870state’s confidential informant, the sufficiency of the evidence, the verdict director, and the refusal of his tendered instructions on lesser included offenses.

Appellant’s first point contends the nondisclosure of the confidential informant was material and prejudicial error because the informant was a participant in, and an eyewitness to, the sale, and appellant’s defense was alibi. He further claims nondisclosure of the informant was critical because Officer Edwards made no positive, in-trial identification of appellant.

Whether the identity of a confidential informant must be disclosed is not easily resolved, as this court recognized in State v. Andrews, 770 S.W.2d 424, 427 (Mo.App.1989). In Andrews we echoed the modern principles expressed in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), relating to disclosure of an informant. In Andrews, as in Roviaro, it was observed that, in order to encourage citizens to come forward with information, the principle has been adopted that there is a privilege to withhold informant’s identity, but that the privilege is limited. Andrews, 770 S.W.2d at 427. “Where the disclosure of an informer’s identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Roviaro, 353 U.S. at 60-61, 77 S.Ct. at 627-28; Andrews, 770 S.W.2d at 427.

The decision whether the informant is essential to a fair determination of the issue in any given case or circumstance is for the trial court in the first instance, and whether the defendant may have a fair trial without requiring disclosure is a matter resting in the sound discretion of the trial court. Andrews, 770 S.W.2d at 428. In reviewing the trial court’s decision, we must weigh the cruciality and relevance of disclosure to the defense against the state’s need for nondisclosure. State v. Sweeney, 701 S.W.2d 420, 426 (Mo. banc 1985); Andrews, 770 S.W.2d at 428. Finally, although concepts of fundamental fairness create exceptions to the general principle of nondisclosure, the defendant bears the burden of developing a record showing the need for disclosure. State v. Sumlin, 782 S.W.2d 749, 752 (Mo.App.1989).

Applying the foregoing authorities to the case at bar, we fail to see how disclosure of the informant’s identity could have helped appellant. The confidential informant here, although more than a mere tipster, conveyed only Wofford’s, not appellant’s, name to the undercover police officer. When she arrived with Officer Edwards, she introduced the officer to Wofford, not appellant. It was Wofford who, in turn, introduced the officer to appellant. Although the confidential informant apparently entered Wofford’s apartment, the record is bereft of any evidence of her participation in the drug sale. We can envision that her testimony might have been relevant had the defense been entrapment, but it was alibi. Despite the alibi defense, Wofford, who had known appellant a year, identified appellant without hesitation as having sold the drugs.

In a case presenting a similar scenario, our Missouri Supreme Court addressed the issue of disclosure of confidential informants in State v. Yates, 442 S.W.2d 21 (Mo.1969). The confidential informant in Yates went with an undercover police officer to a residence where the officer purchased drugs from a woman. The officer and informant returned the next day and requested to see defendant. The officer then bought drugs from defendant and left. Other officers then arrested defendant.

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Bluebook (online)
791 S.W.2d 868, 1990 Mo. App. LEXIS 813, 1990 WL 68150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-minson-moctapp-1990.