State v. Orr

220 S.E.2d 848 (1976)

28 N.C. App. 317

STATE of North Carolina v. William Michael ORR.

No. 7526SC649.

Court of Appeals of North Carolina.

January 7, 1976.

*849 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen., T. Buie Costen, Raleigh, for the State.

Chambers, Stein, Ferguson & Becton by James E. Ferguson, II, Charlotte, for defendant-appellant.

VAUGHN, Judge.

The defendant's first assignment of error relates to the trial court's refusal to require the State to identify the informant and issues that surround that refusal.

From the early stages of the trial, defendant attempted to secure disclosure of the informant's identity. The trial court *850 refused to require the State to reveal the informant's name or address and would not allow questions seeking information as to his background or motivation for participation in the scheme.

The defendant persuasively argues that the informant in this case was not a mere tipster, but instead, was a material witness and a major participant. Additionally, he points out that the informer was the only one who might resolve conflicts between defendant's testimony and that of the officer. Defendant contends that in this case, disclosure is necessary to his defense of entrapment, and is required by authority of Roviaro v. U. S., 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639, and McLawhorn v. North Carolina, 4 Cir., 484 F.2d 1. We agree.

The government's privilege to withhold disclosure of an informer's identity must give way, where the disclosure of his identity, or of the contents of his communication is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause. Roviaro, supra.

The courts have placed great emphasis on determining whether an informant may be classified as a "tipster" or a "participant." These classifications seem to be based on the nature of the informers' activities. The "tipster" is one who supplies law enforcement officers with leads and information while the "participant" is one who takes some active part in the commission of the offense.

As stated in McLawhorn, ". . . [t]he privilege of nondisclosure ordinarily applies where the informant is neither a participant in the offense, nor helps set up its commission, but is a mere tipster who only supplies a lead to law investigating and enforcement officers. (citing cases)"

In the instant case, the evidence tends to show that the informant was a participant and helped to set up the commission of the offense.

The defendant's evidence, when taken as true, would tend to show that it was at the informants urging that defendant had any contact with these drugs at all, that he made the initial face to face contact with defendant, that the informant arranged the sale, purchased some of the drugs with his own funds and in general, helped engineer the events leading up to the crime.

By virtue of his participation, the informer is ". . . a witness to material and relevant events." ". . . [o]ne of the factors tending to show that the prosecution is not entitled to withhold from the accused information as to the identity of an informant is the qualification of the informant to testify directly concerning the very transaction constituting the crime." McLawhorn, supra. Defendant was entitled to have access to the informer as a potential witness. The court's failure to require that the identity of the informer be disclosed requires a new trial.

Defendant has brought forward other assignments of error, some of which appear to have merit. We need not discuss them here, however, because they may not recur at the next trial.

New trial.

BRITT and ARNOLD, JJ., concur.