State v. French ( 1978 )

Clinton, J.,

concurring.

I write this separate concurrence for two reasons: (1) Although I agree with the majority opinion, I do not believe it, in light of the dissent, adequately presents the issues involved, and (2) the dissenting opinion makes some assumptions that the affidavits make a prima facie case of a “frame up” when in fact at most the so-called newly discovered evidence simply presents questions of the relative credibility of various persons, including Bamford, as against the credibility of the witness Landrie, as to matters none of which are directly relevant in the case against French.

I would agree with the dissenting opinion if the showing made by French in support of his motion for a new trial on the ground of newly discovered evidence actually showed that Landrie had “framed” Bamford, or had lied under oath in a similar proceeding.

I do not believe that the dissent fully or fairly reflects the substance of the affidavits because, as noted above, the dissent assumes that which must be at least prima facie established. The case against Bamford was never tried. It was dismissed by the court on motion of the prosecution after the preliminary hearing.

The dissent makes the statement that in both the Bamford and the French cases, “Landrie was the sole witness to the alleged crimes.” This does not correctly reflect the record. It is true that at the preliminary hearing in the Bamford case Landrie was the only witness called. However, his testimony was that several other persons were present at the December 20, 1974, transaction, one of them being Jerry Davis, whose affidavit is one of those upon which French relies to support his claim of newly discovered evidence. Davis, in his affidavit, claims that he (Davis) is the one who, on December 20, 1974, delivered 4,000 amphetamine tablets to Landrie. We make note of this because it would indeed be strange for Landrie to place Davis and other witnesses at the scene if they were in fact not there, for to do so would simply supply the defense with a witness or witnesses who could contradict him.

It is elemental, of course, that ‘‘newly discovered evidence” must be both material and competent. Let us now examine some of the affidavits of Barn-ford’s witnesses. As to both crimes charged, Bamford’s defense would apparently be alibi, i.e., he was not present at the time and place the transactions are alleged to have occurred. As to the December 20, 1974, transaction, the affidavits of Ann Erickson and her mother, Jo Erickson, are plainly hearsay, consisting, in the case of Ann, of her testimony as to what Bamford, in a telephone conversation, told her of his whereabouts. The affidavit of Jo is to the effect that on the occasion in question Ann did have a telephone conversation with someone. Testimony of these two witnesses as demonstrated by affidavits is neither material nor competent.

The affidavit of Jerry Davis contains an acknowledgment that on December 20, 1974, he committed the felony of delivering a controlled substance. This admission in the affidavit cannot be used to establish the corpus of that crime. On the other hand, if he were called by Bamford as a witness (or by French in this case), he could refuse to testify at all simply by exercising his Fifth Amendment right to remain silent.

The affidavit of Danny Anderson relative to the transaction of December 28, 1974, is similar to that of Davis. He swears that on December 28, 1974, he delivered cocaine to Landrie. Here again his affidavit cannot be used to establish the corpus of the crime which he acknowledges he committed. If he were called by Bamford (or by French in this case) as a witness, he could refuse to testify simply by taking the Fifth Amendment.

The remaining affidavits as to the December 28, 1974, transactions simply tend to establish the alibi of Bamford.

Two affidavits would indicate that Landrie “cut” the cocaine (apparently that which is the subject of the December 28 transaction) with baking soda. This seems immaterial with reference to the French case, but would tend to establish that Landrie may have been cheating the State, or perhaps dealing in drugs himself on the side.

The State’s opposing affidavits attest to the reliability and trustworthiness of Landrie, based upon his past performance. These include the results of polygraphic tests submitted to by Landrie and by other persons who openly acknowledged they had sold drugs to Landrie. Bamford also submitted to a polygraphic examination. However, the examiner, an out-of-state expert, indicated that Bamford was uncooperative and attempted to affect the results of the test by controlled breathing. Bamford also removed the polygraphic attachments from his body before the test was completed. In a preliminary interview with the polygraph expert, Bamford acknowledged that he was in Colorado on December 27, 1974, buying controlled substances. These buys were apparently made from two of his alibi witnesses as to the December 28, 1974, transaction.

The trial court certainly did not abuse its discretion in refusing to permit the “trial” of the Bamford case, as a part of a retrial of French’s case. What French seeks to do in this case is to test the credibility of. the informant, Landrie, in the French case by incorporating the Bamford case into it. What the jury would have been confronted with in that event was simply a swearing contest between a paid informant on the one hand and self-admitted dealers in drugs on the other, all with reference to matters not directly relating to French’s guilt or innocence.

Whether the use of paid informants such as Landrie, a convicted felon, is right as a matter of public policy must be determined by the executive branch of government.

We should not depart from established rules simply because Landrie has been the subject of much public discussion and of Legislative investigation. For reasons I have above delineated, I believe the majority opinion properly applies the appropriate and established rules.