Warrior v. State , 299 Ark. 337 ( 1989 )

Darrell Hickman, Justice.

Willie Warrior was convicted of delivering a controlled substance and sentenced to 40 years imprisonment. We affirm. His only argument for reversal is the trial judge should have compelled the state to disclose the identity of a confidential informant.

The state’s chief witness, Officer Robert Thomas, testified that a confidential informant was with him when he made a cocaine “buy” from the appellant. The appellant’s attorney asked him to disclose the name of the informant, and the officer refused. The appellant’s attorney then asked for a bench conference. It was at that point that the trial judge learned that the appellant had filed a motion for disclosure of the informant’s identity two days before the trial. However, the appellant’s attorney had not brought it to the court’s attention even though an opportunity existed. In fact the judge remarked:

Why didn’t you bring that up this morning, Mr. Massie? That’s why we have those 8:30 meetings. . . This is the first time I’ve seen it. . . [I] f you wanted the identity of the informant and it was something that was vital to your case, obviously you would have brought it to the Court’s attention before now so you could find out who it was and get the person here to testify.

The trial judge denied the motion evidently because it was untimely. We affirm since we cannot say the trial judge abused his discretion.

The state has the privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a violation of a law. A.R.E. Rule 509(a); see also A.R.Cr.P. Rule 17.5(b). But there is no reason for the state to invoke the privilege until the defense has requested disclosure of the informant’s identity. Once such a request is made and the privilege invoked, a hearing may be necessary to determine if the informant could provide relevant testimony. A.R.E. Rule 509(c). In other cases involving confidential informants, timely motions have been made and hearings held before trial has begun. See McDaniel v. State, 294 Ark. 416, 743 S.W.2d 795 (1988); see also Roviaro v. U.S., 353 U.S. 53 (1957).

Absent surprise or other mitigating factors, the orderly procedures of a trial are best served by a preliminary ruling on this matter. See generally A.R.E. Rule 104(a). Here, the appellant does not claim surprise, did not request a continuance, and did not give a reason for failing to obtain a ruling prior to trial.

The court was under no obligation to bring the trial to a halt, hold a hearing and possibly postpone the trial to subpoena the informant when the appellant could have obtained a pretrial ruling that would have prevented such a delay. For these reasons, we cannot say the judge abused his discretion in denying the appellant’s motion.

Affirmed.

Purtle, Dudley and Newbern, JJ., dissent.