Boatright v. State , 260 Ga. 534 ( 1990 )

Clarke, Chief Justice.

Boatright was convicted of trafficking in cocaine and other related offenses. The Court of Appeals affirmed the judgment, 195 Ga. App. 440 (393 SE2d 707) (1990). We granted certiorari to consider the following:

1. Whether the trial court erred in refusing to require the prosecution to disclose the identity of, and produce, the confidential informant, where as here the appellant was asserting an entrapment defense.

2. Whether the trial court erred in ruling that appellant’s testimony concerning the conversations with the informant constituted inadmissible hearsay, in that appellant was asserting an entrapment defense and argued that these conversations were admissible to explain his conduct.

1. (a) Boatright contends that he is entitled to disclosure of the identity of the confidential informant because the evidence at trial was that the cocaine allegedly sold by him was received by a third person whom he believed to be a confidential informant. He relies upon Moore v. State, 187 Ga. App. 387 (370 SE2d 511) (1988), in which the Court of Appeals cited Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1957) for this proposition:

In Roviaro, the Supreme Court, after applying the balancing test, held that it was prejudicial error not to reveal the informant’s identity where the informant was the sole participant, other than the accused, in the transaction, and, thus, “was the only witness in a position to amplify or contradict the testimony of government witnesses.” (Emphasis supplied.) Id. at 64. [Id. at 389.]

(b) The Court of Appeals held that

Boatright, however, fails the balancing test in the instant case, because even if the testimony of the informant had been made available and corroborated Boatright’s explanation it would not have exculpated Boatright. By his own admission, Boatright acted at least as a “middleman” in the string of drug sales, motivated by a need for money to pay medical bills for his cancer-stricken wife. The record clearly demonstrates no harm in the non-disclosure of the informant’s identity. [195 Ga. App. at 440.]

(c) Boatright’s testimony at trial does not demonstrate an arguably persuasive case of entrapment. His defense of entrapment¹ consists of the following testimony:

A: Well, I had just got my wife out of a mental hospital in Savannah, and I knew I had been setup, because the way things had — the way Joe skipped on me and everything else, I felt like I had been — I had been had. So . . .

Q: What do you mean setup?

A: Well, I mean, I couldn’t find him, and all at once they — everything just looked, you know, I just can’t say. It just looked funny to me.

Q: Did you think it was the law that was setting you up, or did you think it was a doper setting you up, or did you know?

A: I didn’t know, but I knew that I didn’t want to get busted in front of all my friends, family and everything. I’d rather be busted anywhere, I just didn’t want to be busted in front of my wife.

Q: So if your fear was of being busted, then your concern was about the law?

Q: You were concerned about being busted in Blackshear, so you’re telling this jury that you just walked right up there, well drove right up there and walked into this trap?

A. Right.

Q. If that be so, sir, why did you not surrender yourself there at the Hardee’s?

A. I tried to surrender to her at the church house. I got out walked in front of my truck, which she said she couldn’t pick up on tape. And I told her, I said, “Susie, I know I’ve been had, here I am.” Then she tried to talk me out of it. She wanted me to — she talked some other stuff, I don’t remember what it was. Then I decided I would just get in my truck and see if she’d let me drive off, and I did not get to drive off.

A: I just got out to tell her, you know, that she had set me up, or I had been setup.

Under these circumstances we find that Boatright had no right to demand production of witnesses. However, under different circumstances — if the confidential informant acts as the entrapper, and if the defendant can show that he has an arguably persuasive defense of entrapment — the state might have a duty to produce such a witness.

2. Because of the disposition of the first question asked on certiorari, we need not reach the second question.

Judgment affirmed.

Clarke, C. J., Bell, Hunt, Benham, Fletcher, JJ., and Judge Bryant Culpepper concur; Smith, P. J., dissents; Weltner, J., not participating.

1 Defense of entrapment OCGA § 16-3-25:

A person is not guilty of a crime if, by entrapment, his conduct is induced or solicited by a government officer or employee, or agent of either, for the purpose of obtaining evidence to be used in prosecuting the person for commission of the crime. Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.