Appeal from the Superior Court of the District of Columbia; (Hon. Franklin Burgess, Jr., Motions Judge), (Hon. Evelyn E. Queen, Trial Judge)
Before Wagner and King, Associate Judges, and Belson, Senior Judge.
The opinion of the court was delivered by: King
KING, Associate Judge: Appellant was convicted after a jury trial of a single count of distribution of a controlled substance in violation of D.C. Code § 33-541 (a)(1) (1988). He was sentenced to a three to nine year term. The only issue raised on appeal relates to the denial of his motion for disclosure of the identity of a confidential informant. We affirm.
On July 17, 1989, Special Agent Zebedee Graham of the Bureau of Alcohol, Tobacco, and Firearms was operating as an undercover narcotics officer in the District of Columbia. Based on information provided by a confidential informant, Agent Graham learned that drugs were being sold from 19 T Street, N.W. In response, he went to that address and was allowed admission by an "unknown black female." When Graham entered, he immediately walked into a well-lighted living room where he saw appellant sitting on a table top with five or six plastic containers containing individual rocks of crack cocaine. Three other persons were ahead of Graham seeking to make purchases.
After the others completed their transactions, Agent Graham approached the table, paid appellant twenty dollars, and selected a rock of cocaine. Although the agent was within four feet of appellant during the transaction, no conversation between Graham and appellant took place. *fn1 Graham then left the premises. Laboratory analysis of the rock purchased established that it contained a usable amount of cocaine.
On June 28, 1990, a hearing was conducted in the trial court on a matter unrelated to the issue raised on appeal. In the course of that hearing, however, appellant learned that during the undercover operation Agent Graham was accompanied by the confidential informant. Graham testified that the informant *fn2 went with him to 19 T Street and was present in the living room with the agent when he made the buy. Graham was certain the informant was able to observe the seller.
Based on that information, appellant filed a Motion for Disclosure of Identification of Eyewitness. At the hearing on that motion, the prosecutor informed the court that the informant knew appellant and had provided a description of him. Judge Burgess denied appellant's motion for disclosure, but permitted defense counsel to submit written questions to be answered by the informant. The trial court further ordered that the informant provide responses to the questions in writing under oath and that the answers be submitted to defense counsel before trial with the informant's name expunged. Included with the questionnaire was a photo of appellant for purposes of identification. The informant's sworn responses to the questions were provided to defense counsel prior to trial.
At trial, the government presented Agent Graham as the only witness to the transaction and to the identity of the seller. He testified to the events as set forth above. The defense called appellant's wife as its only witness. The wife claimed that she and appellant had spent the time between 12:30 p.m. and 11:00 p.m. on the day of the sale at the home of appellant's father at 1830 North Capitol Street -- an address which is around the corner from 19 T Street. The witness also testified that she and appellant had formerly lived at the T Street address and both had keys to the premises. Before moving into 19 T Street, she resided next door to that address. Since leaving that area, she has returned to 19 T Street to visit the girlfriend of one of the owners of the premises on ten to fifteen occasions. Appellant accompanied her on some of the visits.
In Roviaro v. United States, 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957), the Supreme Court reversed a trial court ruling that permitted the government to withhold disclosure of the name of its informant in a case involving a prosecution for drug related offenses. The Court concluded that the trial court erred because the informant played a material part in bringing about possession of the drugs, was present at the time the offense was committed, might be a material witness, and was the sole participant, other than the accused, in the alleged transaction. Id. at 55, 64-65.
In Roviaro, police officers arranged to have the informant meet a prospective drug seller by having the informant drive to a previously agreed upon location in his own vehicle. After his arrival he was met by Roviaro, who got into the informant's vehicle. A police officer was hidden in the trunk of that vehicle and was able to overhear at least some of the conversation between the informant and Roviaro. In response to Roviaro's instructions the informant drove around in a section of the city and then stopped at a specified location. Roviaro then exited the car and walked to a point where he picked-up a packet. He returned to the car, placed the packet on the seat, and then walked away. These events were observed in part by the police officer in the trunk *fn3 and by a second officer who followed in another car and watched from a distance. After Roviaro left the scene, the two officers emerged, and one recovered a package from the floor in the front of the informant's vehicle. The package contained heroin, which was the basis for the offenses charged. Both officers testified at trial. The informant was not called as a witness, and the government resisted all efforts to have the informant's identity disclosed.
The Supreme Court, in reversing Roviaro's conviction, rejected a per se rule requiring disclosure when the testimony of the informant "may be relevant and helpful to the accused's defense." Id. at 62 (emphasis added). Instead, the Court concluded that, before ordering disclosure, the trial court must apply a balancing test taking into account the facts of the individual case, any possible defense, the significance of the informant's testimony, and any other relevant factors. Id. at 62. It held that, under the circumstances, the trial court erred when it denied Roviaro's request for disclosure. Id. at 65.
The government argues in this case that Judge Burgess properly ruled against disclosure after carefully balancing the government's interest in nondisclosure against appellant's right to prepare a defense. It maintains that appellant's rights were adequately protected by the requirement that the informant respond, under oath, to the written questions. We agree, and hold that under the circumstances, the ...