The opinion
Lawson Cloninger, Judge, dissenting. I respectfully dissent. The majority seems to have elevated John Robert Robbins to the status of confidential informer, entitled to the full protection of the law regarding his identity. He is entitled to no consideration. The evidence indicates that Robbins either encouraged and assisted the appellant in the marijuana sale out of personal vindictiveness or he was working with the police. He was an informer and a participant in the sale. Whether appellant’s testimony that Robbins had pretended friendship for a period of months is worthy of belief is irrelevant; the important point is that appellant should be given a fair opportunity to obtain Robbins’ presence. He has not been afforded that opportunity.
The majority states that there is “nothing in this record which ever suggests that the State was deliberately concealing Robbins’ whereabouts.” Of course there is no evidence of deliberate concealment, only evidence of complete silence and indifference.
Perhaps appellant should have filed a specific motion to compel discovery, but up to the point of filing his motion for continuance, he had done all that could have been reasonably expected of him. The State was fully aware that appellant was trying to procure Robbins’ attendance, and appellant had previously filed a discovery motion asking in general terms that the State be directed to furnish any information that would be helpful to him in his preparation for trial.
At a hearing held only twenty days before trial, appellant first became aware that the State would no teal 1 Robbins as a witness, and at that time the court had not ruled on appellant’s earlier motion to suppress evidence on the basis of entrapment. After the hearing, appellant caused the issuance of subpoenas for Robbins in two counties. Appellant did not learn that the subpoenas could not be served until the day before trial.
Any evidence having any tendency to make the existence of entrapment more probable is admissible. Uniform Rules of Evidence, Rule 401. The accused should be allowed a reasonable latitude in presenting whatever facts and circumstances he claims constitute an entrapment, subject to ordinary rules of admissibility. Spears v. State, 264 Ark. 83 , 568 S.W.2d 492 (1978). In this case, appellant was given no latitude in establishing the defense of entrapment. I would reverse and remand for a new trial.
I am authorized to state that Corbin and Glaze, JJ., join in this dissent.