State v. Washington

646 So. 2d 448, 1994 WL 670368
Louisiana Court of Appeal·Decided November 10, 1994·No. KA 93 2221·Published·Cited by 12 cases

Opinion

646 So.2d 448 (1994)

STATE of Louisiana
v.
Theron A. WASHINGTON.

No. KA 93 2221.

Court of Appeal of Louisiana, First Circuit.

November 10, 1994.

*449 Doug Moreau, Dist. Atty., Dana Ashford, Asst. Dist Atty., Baton Rouge, for appellee State.

Gerald A. Bosworth, Fred A. Blanche, III, Baton Rouge, for defendant appellant Theron A. Washington.

Before CRAIN, FOIL and WHIPPLE, JJ.

*450 FOIL, Judge.

The defendant, Theron A. Washington, was charged by bill of information with distribution of cocaine, a violation of La.R.S. 40:967(A). He pled not guilty and, after trial by jury, was found guilty as charged. The defendant was subsequently sentenced to fifteen years imprisonment at hard labor with credit for time served. He appealed, urging the following assignments of error:

1. The finding of guilt by the jury in a vote of 10-2 was in error because there was insufficient evidence presented during the trial upon which a verdict of guilty could be based.
2. The trial court erred in failing to require the state to disclose the identity of its confidential informant.
3. The trial court erred in imposing a sentence of fifteen years at hard labor because under the facts and circumstances of this case the sentence constitutes cruel and excessive punishment.
4. The trial court erred in imposing a sentence of fifteen years at hard labor because the sentence does not conform to the requirements of La.C.Cr.P. art. 875.1.
5. The defendant's trial counsel was ineffective for failing to object to the trial court's thirty minute limitation for voir dire.
6. The defendant's trial counsel was ineffective for failing to object to and move for a mistrial after the police officer referred to the defendant's alleged alias during his testimony.
7. The defendant's trial counsel was ineffective in failing to move for a mistrial when the jury informed the court it was deadlocked after over two hours of deliberation.
8. The defendant's trial counsel was ineffective in failing to object to the trial court's giving an Allen charge to the jury.

Assignments of error numbers one, three, four, and six were not briefed on appeal and, therefore, are considered abandoned. Uniform Rules-Courts of Appeal, Rule 2-12.4.

FACTS

On the evening of November 25, 1991, an undercover police officer and a confidential informant met the defendant at a prearranged location in East Baton Rouge Parish. The defendant approached the driver's side of the informant's vehicle. He handed a clear plastic bag containing cocaine to the undercover officer, and the officer handed the defendant $175.00. The defendant then left the area.

Two additional undercover police officers, who were parked in a parking lot across the street from the informant's car, observed the drug transaction. Subsequently, all three undercover officers identified the defendant as the person who distributed cocaine.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant contends in this assignment of error that the trial court erred in failing to grant his motion to require the state to disclose the identity of the confidential informant. He argues that the confidential informant was not merely a bystander but participated in the transaction considerably more than just furnishing a tip to the police officers. He claims that, because the informant was paid to work cases for the Baton Rouge Police Department, he was "an ad hoc police officer paid to do a job" and the defendant was "denied his constitutionally protected right to confront and cross-examine this witness just as he would any police officer involved in this case."

The defendant has a constitutional right to confront witnesses against him in a criminal prosecution. U.S. Const. amend. VI; La. Const. Art. 1, § 16. However, the privilege of withholding the identity of an informer who supplies information to law enforcement officers concerning crime is founded on public policy and seeks to advance the public interest and effective law enforcement by encouraging and protecting the flow of information. State v. Fontenot, 524 So.2d 867, 869 (La.App. 3d Cir.1988).

*451 As a general rule, the state is allowed to withhold the identity of an informer from the accused; it is the defendant who bears the burden of demonstrating exceptional circumstances pertaining to his defense before disclosure is required. Wide discretion is vested in the trial court to determine when disclosure is proper. State v. Carey, 626 So.2d 905, 907 (La.App. 3d Cir. 1993). Disclosure of the name of the confidential informant will be ordered when the prosecution's case shows that the informer, cooperating with the police, participated in the crime. See Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

Although the three undercover officers who were present at the scene of the drug transaction satisfactorily identified the defendant, he contends that, because the issue of his identity was his defense and the informant was the only non-police witness present during the alleged drug transaction, he should be able to cross-examine the informant. The defendant compares his case to State v. Fontenot, wherein the appellate court reversed the defendant's conviction due to the trial court's failure to require the disclosure of the confidential informant's identity. The defendant claims that the confidential informant in the instant case participated in the crime itself to a greater degree than did the confidential informant in Fontenot. We disagree.

In Fontenot, the confidential informant participated in the actual transaction itself by arranging the sale of marijuana while alone with the defendant. The defendant did not make the actual sale, but he procured another to sell drugs to the undercover officer. Because the defendant was convicted as a principal to the crime, his conviction was dependent on evidence of the participation of the informant and her conversation with the defendant about arranging the sale of drugs. The confidential informant dealt with the defendant alone regarding the sale of the marijuana and was not merely a bystander or an onlooker.

In the instant case, the informant, in the presence of police officers, paged the defendant on the defendant's beeper. The defendant returned the informant's call and gave instructions about where to meet him. The informant then drove the undercover officer to the prearranged location. According to the undercover officer's testimony, the informant did not participate in the dealing or the actual drug transaction.

In State v. Carey, the court explained that disclosure of the informant's identity is not warranted where the confidential informant merely introduces the defendant to a police officer when the transaction takes place, for such actions alone do not amount to participation in the crime; such actions on the part of the confidential informant are not perceived to have "framed" or "set up" the defendant to do something which he is not predisposed to do. The same is true when a confidential informant introduces a defendant to the police officer and is present at the sale, when the defendant and the officer voluntarily engaged in the conversation leading to the sale and the informant does no

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Washington, 646 So. 2d 448, 1994 WL 670368 (La. Ct. App. 1994).

646 So. 2d 448 (State v. Washington) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Ramsey
60 So. 3d 36 (Louisiana Court of Appeal, 2011)
State v. ML JR.
35 So. 3d 1183 (Louisiana Court of Appeal, 2010)
State v. Sumrall
34 So. 3d 977 (Louisiana Court of Appeal, 2010)
State v. Anders
941 So. 2d 93 (Louisiana Court of Appeal, 2006)
State v. Gauthier
916 So. 2d 314 (Louisiana Court of Appeal, 2005)
State v. Dabney
908 So. 2d 60 (Louisiana Court of Appeal, 2005)
State v. Dilosa
849 So. 2d 657 (Louisiana Court of Appeal, 2003)
State v. Wilson
806 So. 2d 854 (Louisiana Court of Appeal, 2001)
State v. Jones
714 So. 2d 819 (Louisiana Court of Appeal, 1998)
State v. James
687 So. 2d 485 (Louisiana Court of Appeal, 1996)
State v. Thompson
665 So. 2d 686 (Louisiana Court of Appeal, 1995)