Williams v. State

801 S.W.2d 296, 304 Ark. 279, 1990 Ark. LEXIS 613
Supreme Court of Arkansas·Decided December 21, 1990·No. CR 90-185·Published·Cited by 24 cases

Opinion

Tom Glaze, Justice.

Appellant, along with codefendant Yvette Foster, was charged with delivery of a controlled substance, cocaine. At trial, the trial court granted Foster’s directed verdict motion and dismissed her case, but appellant’s case went to the jury which convicted him. Appellant was sentenced to forty years imprisonment as a habitual offender. On appeal, appellant raises four points for reversal. We affirm.

Appellant first challenges the fee arrangement between the North Little Rock Police Department and the confidential informant to whom appellant allegedly sold the cocaine. The informant was paid $60.00 for each successful drug transaction that he completed. Appellant also complains that the informer, who had moved from the state after appellant and Foster were charged, was also reimbursed his expenses by the North Little Rock Police Department and paid “court leave” by his employer during the period the informant appeared as a witness. Appellant asserts that these payments and reimbursements violate Ark. Code Ann. § 16-43-801(2) (1987), a witness fee provision, and his constitutional rights to due process under the United States and Arkansas Constitutions. 1 We disagree.

First we address the language in § 16-43-801(2) which provides that witnesses in criminal cases shall be paid at a rate of $5.00 per day. Appellant argues this statute was violated since the arrangements in this case resulted in the informant being paid more than $5.00 per day for his testimony. In examining the language in § 16-43-801(2), we find no indication that the General Assembly intended the $5.00 to be a ceiling amount. In fact, this same statute provides the same $5.00 amount in civil cases, and this court, in promulgating ARCP Rule 45, established a $30.00 per day witness fee plus a $0.25 per mile travel amount. More importantly, though, the arrangements in this case do not constitute compensation for the witness’s appearance in court. An original payment of $60.00 was made to the informant at the time of the drug transaction; it was not connected to his appearance in court as a witness. Also, payment of the informant’s expenses is not precluded under § 16-43-801(2), nor is any payment made to him by his employer.

In support of his argument that the contingent nature of the informant’s fee violates due process, appellant cites the Florida case of State v. Glosson, 441 So.2d 1178 (Fla. Dist. Ct. App. 1983), appr’d. 462 So.2d 1982 (Fla. 1985). In Glosson, the confidential informant had an arrangement with the authorities whereby he would receive ten percent of all civil forfeitures resulting from criminal investigations in which he was involved. However, the payment of the informant’s fee in Glosson was contingent on his cooperation, testimony in, and successful prosecution of the case. Based upon these circumstances, the Florida court held the contingent fee arrangement to be violative of due process.

Initially, we note that Florida appears to be the only state which has held that the use of contingent fee informants violates due process. Even in Florida, the Glosson decision has been narrowly interpreted and limited to its facts. See Annotation, Contingent Fee Informant Testimony in State Prosecutions, 57 A.L.R.4th 643 (1987). Further, the case specifically relied upon by Glosson for its holding, Williamson v. United States, 311 F.2d 441 (5th Cir. 1962), was expressly overruled in United States v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir. 1987), cert. denied; Nelson v. United States, 484 U.S. 1026 (1988).

Additionally, the case before us is clearly distinguishable from Glosson. Here, the confidential informer was paid $60.00 for each completed drug transaction, and his payment was not contingent upon his cooperation, testimony and the successful prosecution of the case, as was the situation in Glosson. Thus, Glosson is not applicable to this case.

We choose to follow the strong policy articulated in Hoffa v. United States, 385 U.S. 293 (1966), that the veracity of a witness is left to be tested on cross-examination, and the credibility of a witness’s testimony is to be determined by a properly informed jury. Historically, this state has followed the general rule that credibility of witnesses is for the jury. See Wallace v. State, 28 Ark. 531 (1873). There is no reason to change that policy now. As long as the informant is subject to cross-examination regarding the fee arrangement, as he was in the present case, there is no reason to reverse a conviction simply because an informant was paid a contingent fee for his services. In other words, it should be left to the jury to evaluate the credibility of the compensated witness.

For his second point, appellant argues that, if we find it was not error to allow the testimony of the contingent fee informant, we should find error in the trial court’s refusal to give appellant’s proffered cautionary instruction on the credibility of informants. Appellant’s proffered instruction reads as follows:

The testimony of a paid informer, or any witness whose self-interest or attitude is shown to be such as might tend to prompt testimony unfavorable to the accused, should always be considered with great caution and care.

While some federal courts have adopted such cautionary informer instructions, our court has not. The trial judge here correctly gave AMCI 104 which contains the general instruction on the credibility of witnesses. Because AMCI 104 adequately instructed the jury with respect to the credibility issue, the judge was not required to repeat the instruction in a different manner. See Sumlin v. State, 266 Ark. 709, 587 S.W.2d 5171 (1979).

Appellant next contends the trial court erred in not granting his motion for severance. Immediately prior to trial, appellant moved for a severance based on information that the confidential informant’s testimony was gong to focus more on appellant than his codefendant, Foster. According to appellant, the defenses had become “antithetical.” However, at trial the informant’s testimony did not focus solely on appellant, but. implicated his codefendant as well. Two officers who were conducting surveillance of the transaction also implicated Foster. Further, neither defendant attempted to place the blame on the other.

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Williams v. State, 801 S.W.2d 296, 304 Ark. 279, 1990 Ark. LEXIS 613 (Ark. 1990).

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