Franklin v. State

⁶⁴⁶ Hornby, J., delivered the opinion of the Court. The principal question presented by this appeal from convictions for the sale of narcotics is whether the defendant was denied the right of confrontation as the result of an informer invoking the privilege against self-incrimination. An additional question is raised as to the sufficiency of the evidence. On an evening in February 1964 an officer of the Baltimore City narcotics squad and an informer went to a bar on West Saratoga Street.

On entering, the informer engaged in a conversation with the defendant. Shortly thereafter the officer and informer left, went to the parked automobile of the informer and got in the front seat. The defendant followed, got in the rear seat and asked “how much” was wanted. He was told they wanted “one” and the officer handed the defendant nine dollars, whereupon the defendant left the automobile and returned promptly with a glassine envelope and gave it to the officer.

On the next evening, the officer,- the informer and the defendant followed a similar routine. On this occasion, the defendant returned to the automobile with two glassine envelopes and received twenty dollars in return. Subsequent chemical analyses showed that the envelopes contained heroin. Approximately five months later, the officer obtained a warrant and arrested the defendant, who, upon being interrogated, denied ever having seen the officer.

At the trial, the officer, besides relating the aforegoing incidents, positively identified the defendant as the person who had sold him the heroin. In his defense, the defendant called a friend who testified that on both of the days the defendant was charged with selling heroin he had been in Washington, D.C., and not in Baltimore. The State, in rebuttal, produced a federal narcotics agent, who had worked with the city officer. The agent testified that he had observed the meetings between the city officer, informer and defendant on both occasions.

No other witnesses were called by the State, and the defendant decided not to testify. The informer was called as a witness by the defendant and sworn. When he was asked whether or not he was a paid informer, he refused to answer the question on the ground that ⁶⁴⁷ it might incriminate him. At the ensuing colloquy between the trial judge and defense counsel, the latter sought to have the court order the witness to answer the question.

But the trial judge, who had knowledge of indictments charging the informer with violations of the narcotics law and other offenses and who knew that this was the reason the informer had claimed the privilege, thought it would be useless, as well as unfair, to continue with the examination and excused the witness. The defendant made no proffer of what the witness would have testified to had he been compelled to do so and his counsel expressed no desire to propound further questions to the witness. The lower court, choosing to believe the testimony of the city officer and federal agent rather than the testimony of the alibi witness, found the defendant guilty of making both sales and sentenced him to concurrent terms of imprisonment. This appeal followed.

(i) The contention of the appellant that his inability to “cross-examine” the informer because he was allowed to invoke his constitutional right not “to be compelled to give evidence against himself” 1 was a denial of the constitutional right of the appellant “to be confronted with the witnesses against him” 2 is clearly without substance. The right of an accused to be confronted with the witnesses against him is not only guaranteed by Article 21 of the Maryland Declaration of Rights but is also available under the Fourteenth Amendment to the Constitution of the United States in that the right given by the Sixth Amendment was made