State v. Parks

220 S.E.2d 382 (1975)

28 N.C. App. 20

STATE of North Carolina v. Mason Freeman PARKS.

No. 7526SC491.

Court of Appeals of North Carolina.

December 17, 1975.

Certiorari Denied and February 3, 1976.

*385 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles J. Murray, Raleigh, for the State.

James, Williams, McElroy & Diehl, P. A. by William K. Diehl, Jr., Charlotte, for defendant-appellant.

Certiorari Denied and Appeal Dismissed February 3, 1976.

MORRIS, Judge.

Defendant, citing as error the failure of the trial court to require disclosure of the identity of the confidential informers involved in the purported 30 August 1974 meeting and drug transaction, maintains that disclosure was necessary for the effective presentation of his alibi defense and his related contention of misidentification.

The United States Supreme Court, though recognizing the government's privilege of informant nondisclosure, noted the counterbalancing principle that disclosure is warranted where informant identity is ". . . relevant and helpful to the defense of an accused, or is essential for a fair determination of a cause . . . ." Roviaro v. United States, 353 U.S. 53, 60-61, 77 S. Ct. 623, 628, 1 L. Ed. 2d 639 (1957); also see McLawhorn v. State of North Carolina, 484 F.2d 1, 5 (4th Cir. 1973); State v. Cameron, 283 N.C. 191, 193, 195 S.E.2d 481 (1973). The Supreme Court, rather than amplify on the details of this basic problem, broadly opined ". . . that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Roviaro, supra, 353 U.S. at 62, 77 S. Ct. at 628; McLawhorn, supra, 484 F.2d at 4.

*386 Our Supreme Court, interpreting the Roviaro decision, has concluded that "Roviaro makes two things clear: (1) There is a distinct need for an informer's privilege but the general rule of nondisclosure is not absolute, and (2) disclosure is required where the informer directly participates in the alleged crime so as to make him a material witness on the issue of guilt or innocence." State v. Ketchie, 286 N.C. 387, 390, 211 S.E.2d 207, 209 (1975). This Court, consistent with our Supreme Court's analysis, will compel disclosure ". . . if it appears that he [i. e. the informant] is a participant as opposed to a `mere tipster.'" State v. Lisk, 21 N.C.App. 474, 476, 204 S.E.2d 868 (1974), cert. denied 285 N.C. 666, 207 S.E.2d 759 (1974). Also see McLawhorn, supra, 484 F.2d at pp. 5-6. Whether the informant is a participant or a "mere tipster" turns, at least partially, on the ". . . qualification of the informant to testify directly concerning the very transaction constituting the crime." (Emphasis supplied.) McLawhorn, supra, at p. 5. If the informant can testify as to the details surrounding the actual crime, then the defendant should be given the opportunity to test his credibility as a witness.

In this case, the informants purportedly accompanied Agent Eastman to the defendant's Connection Lounge on 30 August 1974 and allegedly made the "buy" for Eastman. However, defendant was not charged with the felonious distribution of drugs on 30 August, but rather, stood on trial for the illegal and felonious sale of five pounds of marijuana on 6 September 1974 to Agent Eastman. Defendant dealt only with Eastman with respect to the 6 September "deal" and the informants never participated in the negotiation or actual culmination of the purported unlawful transaction. Without question, the informants provided Eastman with the necessary entree to defendant's purported drug business, but once the course of dealing was established on 30 August 1974 and defendant felt confident that he was dealing with a safe buyer, the relationship became one uniquely personal between defendant and Eastman.

We are familiar with the California Supreme Court's decisions in People v. Durazo, 52 Cal. 2d 354, 340 P.2d 594 (1959), and People v. Williams, 51 Cal. 2d 355, 333 P.2d 19 (1958), but we consider their reasoning faulty and illogical and expressly reject their position. In Durazo and Williams the California Supreme Court held that when a subsequent transaction, even though accomplished without the assistance of the informant, ". . . was consummated in reliance upon the prior one . . ." then disclosure was necessary. Williams, supra, at 360, 333 P.2d at 22. In Durazo, Justice Shenk, forcefully dissenting, argued that disclosure was unwarranted because "there was no informant participation." Durazo, supra, 52 Cal. 2d at 357, 340 P.2d at 596. We believe Justice Shenk's opinion more accurately reflects the proper application of the law. In North Carolina, participation is the essential factor and when the ". . unknown person was not present at the time of the actual sale . . ." there is no necessity for revealing the confidential source's name. State v. Cameron, supra, 283 N.C. at 194, 195 S.E.2d at 483.

Here, the officer was sure and certain of his identification. It was not based on an observation lasting just a few minutes; he was in the presence of defendant for almost an hour. Most of that time the two were alone and engaged in face to face conversation. Felony narcotics violations appear to be increasing at a rather alarming rate. Because of the nature of the crime, the use of informers has to play a major role in the apprehension and conviction of narcotics violators. Further extension of the rule with respect to disclosure of the name of the informer could well result in the elimination of the use of informers and, correspondingly, ineffective law enforcement in the area of narcotics violations. To adopt the majority rule in Durazo and Williams would result in requiring disclosure of the informer's name in almost every case where the defendant claims he is *387 "not the man". This we are unwilling to do, especially, where, as here, there was positive, direct, face to face testimony of the arresting officer that defendant was "the man", and the informer had nothing to do with the transaction for which defendant was arrested.

No error.

HEDRICK and ARNOLD, JJ., concur.