*1
38, 54,
1060,
surer, Etc., 287 Md.
410 A.2d
denied,
834,
Dakota,
(1980),
cert.
Plaintiff
STATE of South
Appellee,
106,
(1980), holding
S.Ct. were to refunds as a petitioners entitled right. Federal Constitutional matter SMITH, Defendant Delano Steven Also, my Brothers on the United two Appellant. Court, Justices White and States No. 13602. Blackmun, noted Emmerik the Van Dakota. jurisdiction South probable and stated: case had principle it is clear that “the Just as 17, Argued May 1982. could, if carried too legislation curative 27, 1982. Decided Oct. far, irresponsible encourage official con * duct,” clear that it is also it is this define the duty boundary be Court’s impermissible ret permissible
tween question tax increases. The
roactive insubstantial,
hardly lower courts are conflict, Court’s cases fail
in adequate guidance.
to furnish Emmerik, 304 Van - denied, -, -,
appeal U.S. L.Ed.2d
S.Ct. caveat, add: writ of certiorari I would
By Maryland the 1980 in case denied the taxpayers was deemed were
where it Whereas, refunds. in Van Em-
entitled to
merik, denied where the appeal refunds. Obviously, denied were
taxpayers trumpeted Court has not highest its record, this matter. And the voice
final Emmerik irrespon- reveals the Van conduct Department
sible official of this State. It is also found in
Revenue case at bar.
* Slawson, Legislative Constitutional and Rev. Consid- Lawmaking, 48 Cal.L. in Retroactive erations
Jeffrey Siegel, T. of Sveen Barnett & Schultz, Aberdeen, appel- for defendant and lant.
WOLLMAN, Justice. appeals judgment from a
Steven Smith of based on a jury finding verdict conviction guilty pound of distribution of one-half him marijuana (SDCL 22-42-7). or more We affirm. by the Aberdeen
An informant was hired
Department
in making
Police
assist
drug
appellant
buy
drug
between
and a
agent. Although appellant
enforcement
together
the informant had
for
worked
appellant
months and
had hired the
a few
paint
house,
appellant
tes-
informant
he knew
only by
tified that
the informant
nickname. After
least
three inci-
asking appellant
marijuana,
to sell
dents
successfully
informant
in a
assisted
drug buy
between
drug
and a
agent. Appellant was subse-
enforcement
distributing marijuana.
quently
trial,
morning
On
the trial
granted appellant’s
compel
motion
of the informant’s name and de-
disclosure
appellant’s motion for a
nied
continuance.
interroga-
allowed an in-camera
The court
of the informant
the next morning.
Appellant contends that
the State
timely disclose the
failed
the trial court
and that
abused its
name
granting appellant’s
in not
mo
discretion
continuance. We disagree.
tion for a
contends that the
state’s attor-
attorney general’s
offices
ney’s
were
uncooperative
regard
with
to his
at-
tempts
the name
to discover
of the infor-
compel disclosure,
The motion
mant.
however,
prepared
day
was not
until the
hearing
before
and the
on the
morning
was scheduled for the
motion
repeatedly
held that
late
We
trial.1
Pierre,
Kludt,
Douglas
Asst.Atty.Gen.,
equated
suppression,
E.
disclosure
this,
plaintiff
appellee;
Mark V.
especially
Meier-
case such as
where
Pierre,
Atty.Gen.,
henry,
the brief.
utilizes the information at
part
1. We note that the trial court
confidential informant’s name on
commented that
indication to the court whatsoev
was “no
the state.”
any
withholding
there was
bad faith in
er that
Fox,
(S.D.
purpose
sides himself for the
impeaching
211 Honor, BY MR. Your I SVEEN: injustice manifest resulted from the trial no that, object to and would ask that his grant refusal the continuance. court’s There’s— answer be striken. of the The denial continuance neither COURT: You ques- BY THE asked the appellant from prevented presenting his en- tion. nor trapment prevented him from agree Appellant We with the trial court. the informant’s impeaching character and not be allowed complain court will of testimo- credibility. The allowed an in-cam- himself era, interrogation ny appellant elicited. Drier v. on-the-record See of the in- Perfection, Inc., 259 morning (S.D.1977); day second formant Appellant Grass, 551, was thoroughly Blackpipe allowed to State Bank v. 78 trial.2 S.D. Likewise, 442 Ap- cross-examine informant at trial. if the presented four pellant also witnesses be- in referring erred to the other ar- officer jurisdictions denying was no 2. similar abuse of discretion in Other considered the con- Gee, upheld denials of continuances. In tinuance. In State v. 262 S.C. 204 facts State, Cummings (1974), Wis.2d v. S.E.2d 727 South (1976), the Wisconsin Court held held that a denial of continuance so Carolina prosecution prepare was not to inform that the could for that the defendant effective identity of an until was of an informer not an cross-examination compel, hearing discretion, temporary on a motion to was a there when a recess abuse of subsequent where the motion for continu- granted after the continuance was denied. day not made until the ance was rests, testimony The of an pro- it error invited informer who permitted he will of which now against for vides evidence Defendant Parker, v. advantage. punishment, to take pay, immunity or for from or (S.D.1978). N.W.2d vindiction, advantage or personal weighed by be examined must Appellant contends greater testimony care than jury with committed reversible in denying ordinary witness, jury of an mistrial motion based on inaccu whether the informer’s testi- determine story published during news trial and rate interest, by by been effected mony has three jurors. least read trial 13,1981. prejudice against Defendant. October October began edition of Aberdeen American Beene, cites State N.W.2d an article referring contained to the News authority as requiring motion hearing appellant’s in-chambers Beene, however, instruction. such an in *4 use, appellant’s drug to a and to accomplice testimony, testimony not volved bargain a guilty plea and of others plea Accordingly, informant. decision that drug violations. appel After compel holding does a appellant’s not that for a moved mistrial based lant on this proposed giv instruction should have been court questioned jur the publicity, Although we en. stated in v. Mar State any if had read the to determine article. ors shall, (S.D.1978), 264 that a questioned jurors the three court then The cautionary may instruction be in the had read article to who determine if involving an testimony, cases informant’s would the be influenced any by three the possible we this application limited jurors of the All three testified article. Id. at “proper” cases. 917. This is not such not be they influenced by would the that cautionary a case. A instruction for an then jurors The court the informed article. testimony is not required when informant’s of the some information in the article is material corroboration infor there of the been not have included and that should testimony. Lee, United mant’s States v. information was of the inaccurate. some (D.C.1974); Lujan 111 v. 506 F.2d United court then jurors admonished the The Cir.1965). States, (10th F.2d 348 156 ne disregard anything that they had read Wit for both sses the newspaper. in-the State and the case about much of the corroborated informant’s testi The United States Court has mony precluded therefore the need that the trial large court has a determined proposed cautionary the We do instruction. determining in whether to grant discretion the informant not believe in this case jurors in a mistrial because trial have immunity providing information for concerning article news trial. read personal advantage or for punishment from v. United Marshall 79 requested Thus much of or vindication. the L.Ed.2d 3 1250 For such S.Ct. would applicable. instruction been a mistrial, to require jurors the publicity Lee, v. supra. States See United to have prejudiced by be shown been publicity. United Reynolds, States v. appellant’s remaining considered We have (5th 242 Olson, F.2d Cir. 1978); v. they contentions conclude that do not N.W.2d 190 (N.D.1978). There is no requiring judg- a reversal raise issues of the in this showing case. See generally, such ment. Annot., A.L.R.2d §§ judgment is affirmed. The argues trial prejudicial committed re in FOSHEIM, C.J., and DUNN and MOR- fusing requested cautionary instruction JJ., GAN, concur. regarding an testimony. The provided: HENDERSON, J., instruction proposed dissents. Therefore, I HENDERSON, udiced. I dissent as believe the (dissenting). Justice denying abused its in trial court discretion Fox, distinguish I State v. continuance. Coe, and State (S.D.1981) defense as no mo counsel made support this dissent I further Here, a continuance therein. de following lan- United States promptly counsel moved for a contin fense guage: he became aware when of the in uance as in- usually referred to What is whereabouts, identity, and that former’s privilege reality is former’s testify. The motion for continu would he privilege withhold from Government’s continually by was renewed ance identity persons disclosure who throughout the trial. counsel information of violations of law furnish Particularly disturbing to me is that charged with enforcement to officers uncertainty as to whether the existed purpose privilege of the that law. attorney’s County office of Brown state’s protection furtherance and Attorney prose- General’s office interest effective law enforce- public counsel caught up in a cute privilege recognizes the obli- ment. game. shell prosecutorial Numerous con- citizens gation of to communicate their versations, prior between defense knowledge of crimes commission of prosecutors various led defense counsel and, by pre- officials law-enforcement to believe that full disclosure would encourages serving anonymity, their prosecution. Defense coun- made *5 perform obligation. them repeatedly assured that dis- open was sel be allowed. covery proved would This un- prosecution believe and I took true applicabili- A further limitation on the advantage of defense just counsel. It was ty privilege of arises from funda- prior to trial prosecu- 15 minutes requirements of fairness. mental Where the name of the informant revealed of identity, an informer’s the disclosure be testify. that he called to communication, contents of his testimony, according to the helpful to the defense is relevant court, statements prosecution’s accused, or is to a essential fair deter- equally It was therefore es- was essential. cause, a privilege mination to adequately to defense sential counsel way. give concerning such testimony. prepare 53, 59- Roviaro v. United might equated not be Late disclosure 623, 627-28, 77 S.Ct. 1 L.Ed.2d but suppression leading a brother (citations (1957) omitted). 644-45 he to believe will given bar all infor- concluded failure of the doing on the case then not so mation the identity disclose government information 15 minutes spring only to agent in the face of demands undercover a of a is horse different color. prior prejudicial accused constituted game is not of hide It is and seek.
Justice required reversal of the conviction. which counsel, for truth. Defense search client, had the right prepare behalf cross-examination effective Having vital witness. impeachment so, a continuance to do
been denied impaired effectively was defend-
counsel he professionally cause called
ing the Furthermore, to defend.
upon to cross-examine wit- being to the informer made
nesses Thus, prej- client’s cause was
available.