{ "id": 2828712, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Rosswell William DEBARRY, Defendant-Appellant", "name_abbreviation": "State v. Debarry", "decision_date": "1974-10-09", "docket_number": "No. 1424", "first_page": "742", "last_page": "744", "citations": [ { "type": "official", "cite": "86 N.M. 742" }, { "type": "parallel", "cite": "527 P.2d 505" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "81 N.M. 521", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359716 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0521-01" ] }, { "cite": "86 N.M. 224", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2824190 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/86/0224-01" ] }, { "cite": "80 N.M. 297", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359313 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0297-01" ] }, { "cite": "384 F.2d 464", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2082325 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/f2d/384/0464-01" ] }, { "cite": "38 L.Ed.2d 139", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1973, "opinion_index": 0 }, { "cite": "94 S.Ct. 248", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1973, "opinion_index": 0 }, { "cite": "414 U.S. 897", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11769353, 11769101, 11769147, 11769212, 11769279 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/us/414/0897-05", "/us/414/0897-01", "/us/414/0897-02", "/us/414/0897-03", "/us/414/0897-04" ] }, { "cite": "479 F.2d 930", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1310625 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/f2d/479/0930-01" ] }, { "cite": "50 Ala.App. 501", "category": "reporters:state", "reporter": "Ala. App.", "case_ids": [ 1731211 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/ala-app/50/0501-01" ] }, { "cite": "353 U.S. 53", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6159521 ], "weight": 3, "year": 1957, "opinion_index": 0, "case_paths": [ "/us/353/0053-01" ] }, { "cite": "86 N.M. 484", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2825239 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/86/0484-01" ] }, { "cite": "86 N.M. 674", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2825196 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0674-01" ] }, { "cite": "86 N.M. 134", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2821351 ], "weight": 4, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/86/0134-01" ] } ], "analysis": { "cardinality": 449, "char_count": 7599, "ocr_confidence": 0.841, "pagerank": { "raw": 1.6128096705350293e-07, "percentile": 0.6858787906167503 }, "sha256": "5138a1f31e1709fd73cf73711d8c54d8c25c38dded15eb63db67861947b3f036", "simhash": "1:9c373b297d3938ee", "word_count": 1251 }, "last_updated": "2023-07-14T22:44:27.328252+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SUTIN and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Rosswell William DEBARRY, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nConvicted of two counts of trafficking in a controlled substance (\u00a7 54 \u2014 11-20, N. M.S.A.1953 (Repl.Vol.1962, pt. 2, Supp. 1973)) defendant appeals raising three points for reversal: (1) failure to disclose informant\u2019s identity; (2) failure to give an \u201cabsent witness\u201d instruction; and, (3) failure to sentence pursuant to State v. Herrera, 86 N.M. 134, 520 P.2d 554 (Ct.App. 1974).\nFailure to Disclose\nInformant\u2019s Identity\nThe two heroin sales for which defendant was found guilty occurred at the residence of defendant\u2019s mother. At the time of the first sale, Officer Herrera and the informant went to the back of the house and knocked on the window of the converted garage in which defendant lived. A shade was opened revealing two people in the room. One, Officer Herrera identified as John and the other Ross. The informant said \u201chi\u201d to the two and told them that Officer Herrera was \u201call right.\u201d Ross then made a sale to Officer Herrera between the wooden slats covering the window. Two days later a similar transaction took place, although John was not present when Ross made the sale. The informer accompanied Officer Herrera but said nothing. Immediately after the second sale, a surveillance officer saw a man whom he identified as defendant step out of the house and watch Officer Herrera and the informer drive off. Officer Herrera identified defendant by photo some two or three weeks after the occurrences. Defendant testified that he had never seen Officer Herrera before he coincidentally saw him in court two months prior to trial. He stated he had never sold heroin to Officer Herrera.\nPrior to trial defendant moved for disclosure of the informer\u2019s identity on the ground that his \u201c * * * testimony would be pertinent at trial.\u201d He also moved, at the close of the prosecution\u2019s case and at the end of trial, for dismissal for failure to disclose. All motions were denied.\nTo determine the merit of defendant\u2019s claim we must weigh his right to a defense against the state\u2019s interest in preserving the informer\u2019s identity. State v. Romero, 86 N.M. 674, 526 P.2d 816 (Ct.App.1974).\nHere, the informer\u2019s testimony could be highly relevant to the defense. Defendant\u2019s case rested on misidentification by the officer. Two officers identified defendant. Other circumstantial evidence tied to him to the residence. In reply defendant asserted that he had not seen Officer Herrera until two months before trial and that he had not sold heroin to Herrera. The informer supposedly knew the man who sold heroin to the officer, for it was his function \u201c * * * to introduce the undercover agent to someone who is suspected of selling narcotics.\u201d If the informer would testify it was not the defendant to whom he introduced the officer, that testimony would be crucial in bolstering defendant\u2019s misidentification defense. Compare State v. Bauske, 86 N.M. 484, 525 P.2d 411 (Ct.App.1974).\nThe state disputes the relevance of this projected testimony. It first argues that the informer here was neither a sole participant nor a direct participant in the criminal transaction as was the informer in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), where the court required disclosure. That the informer was not a sole participant in this case makes his testimony all the more crucial. The accompanying officer was defendant\u2019s most damning witness. Only the informer can rebut that testimony. To say that the informer was not a direct participant is not entirely accurate. Although he did not directly participate in the criminal act and may therefore not have been a material witness on the issue of entrapment, (see Kilgore v. State, 50 Ala.App. 501, 280 So.2d 206 (1973)), he did directly participate in the introduction. He obviously had direct knowledge of the identity of the man with whom the officer was dealing. As to the relevant question here, misidentification, he was a direct participant.\nThe state also argues that since there was another witness in the room who presumably knew defendant when the first sale was consummated and since defendant obviously knew the informant, because the informer introduced him to the officer, he could call either to the stand if he really wanted to. This argument, which validly applies to entrapment cases, is totally illogical where the defendant claims misidentification. How can he know these two people if hfe was not present at either sale? Compare United States v. Connolly, 479 F.2d 930 (9th Cir. 1973), cert. dismissed in 414 U.S. 897, 94 S.Ct. 248, 38 L.Ed.2d 139 (1973); United States v. Day, 384 F.2d 464 (3rd Cir. 1967). Neither could he have gleaned the other witness\u2019 identity from court testimony, which identified him only as John.\nThe state\u2019s interest here is, as always, the protection of the \u201ccover\u201d of important informers. That interest is less in cases where the police specifically decide to take the informer with them when they make a deal. As United States v. Day, supra, points out, the person who deals with the agent knows the informer\u2019s identity. Therefore, in this case, since the police decided to \u201cblow\u201d the informer\u2019s cover, in order to make the sale, they themselves lessened the state\u2019s interest. Furthermore, we propose to grant a remedy that will totally vindicate the state\u2019s interest if the informer\u2019s testimony is not relevant to defendant\u2019s misidentification defense.\nWe find the balance to weigh clearly in favor of disclosure if the informer\u2019s testimony is as helpful to defendant\u2019s case as he contends. See Evidence Rule 510(c) (2); State v. Bauske, supra. We therefore remand to the trial court to hold an in camera hearing to determine whether the informer will in fact so testify.\nFailure to Give an \"Absent Witness\u201d Instruction\nDefendant tendered an instruction which stated: \u25a0\n\u201cNo. 1. If a witness, who could have given material testimony on an issue in this case that would elucidate the transaction, was peculiarly available to or could have been made available to testify by one party but was not called by that party and his absence has not been sufficiently accounted for, or explained, then you may infer that the testimony of that witness would have been unfavorable to the party who failed to call that witness.\u201d\nThe question of error in failure to give this requested instruction is moot in light of the above disposition of the informer disclosure issue. If the informer\u2019s testimony is found to be relevant, defendant will be granted a new trial. If the testimony is not relevant the court would have been correct in refusing the instruction. See State v. Soliz, 80 N.M. 297, 454 P.2d 779 (Ct.App.1969).\nFailure to Sentence Pursuant to State v. Herrera, Supra\nThis point has no merit. State v. Herrera, supra, was overruled by State v. Herrera, 86 N.M. 224, 522 P.2d 76 (1974).\nWe conditionally affirm the judgment. We remand the case to the trial court for the in camera hearing to determine the relevance of the informer\u2019s testimony. If the court determines the testimony is sufficiently relevant defendant is to be awarded a new trial. If the testimony is not sufficiently relevant the judgment will stand affirmed. See State v. Torres, 81 N.M. 521, 469 P.2d 166 (Ct.App.1970).\nIt is so ordered.\nSUTIN and LOPEZ, JJ., concur.", "type": "majority", "author": "HENDLEY, Judge." } ], "attorneys": [ "Roy G. Hill, Santa Fe, for defendant-appellant.", "David L. Norvell, Atty. Gen., Jane E. Pendleton, Asst. .Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "527 P.2d 505\nSTATE of New Mexico, Plaintiff-Appellee, v. Rosswell William DEBARRY, Defendant-Appellant.\nNo. 1424.\nCourt of Appeals of New Mexico.\nOct. 9, 1974.\nRoy G. Hill, Santa Fe, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Jane E. Pendleton, Asst. .Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0742-01", "first_page_order": 772, "last_page_order": 774 }