McLawhorn v. State of North Carolina

• Decision Date: 10 September 1973
• Docket Number: No. 73-1231.,73-1231.
• Citation: 484 F.2d 1
• Parties: Herman Russell McLAWHORN, III, Appellant v. STATE OF NORTH CAROLINA, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

484 F.2d 1 (1973)

Herman Russell McLAWHORN, III, Appellant v. STATE OF NORTH CAROLINA, Appellee.

No. 73-1231.

United States Court of Appeals, Fourth Circuit.

Argued April 2, 1973.

Decided September 10, 1973.

Jack W. Floyd, Greensboro, N. C. (Benjamin F. Davis, Jr., and Smith, Moore, Smith, Schell & Hunter, Greensboro, N. C., on brief), for appellant.

Richard N. League, Asst. Atty. Gen., of North Carolina (Robert Morgan, Atty. Gen., of North Carolina, on brief), for appellee.

Before BOREMAN, Senior Circuit Judge, and CRAVEN and BUTZNER, Circuit Judges.

BOREMAN, Senior Circuit Judge:

Herman Russell McLawhorn, III (hereafter petitioner or McLawhorn) appeals the district court's denial of his petition for a writ of habeas corpus. He complains that the State's refusal to reveal the identity of an informant who participated in illegal activities with respect to narcotic drugs of which petitioner was convicted in state court is a denial of due process. Since we conclude that this refusal to reveal the identity of a participant in the offenses charged constitutes a denial of fundamental fairness required by the Fourteenth Amendment, we reverse and remand.

I

During the summer and fall of 1971, Detective Sylvester Daughtry, an officer in the Greensboro, North Carolina, Police Department, was conducting an extensive undercover investigation of illegal drug sales in the area with the assistance of an unidentified informant. The informant told Daughtry that Mc-Lawhorn was involved in the drug traffic and offered to arrange a sale of cocaine. On August 7, 1971, after making several telephone calls to McLawhorn in an effort to arrange a "buy," the informant met Daughtry and began looking for McLawhorn on the streets. The informant saw McLawhorn driving a car and signaled him to stop. After a brief conversation the informant called to Daughtry and introduced him as a potential customer. They entered Mc-Lawhorn's car who then drove them a short distance while the informant negotiated a sale of one gram of cocaine. According to Daughtry's testimony, McLawhorn then removed one gram of cocaine from under the dashboard of his car and sold it to Daughtry and the informant for forty-five dollars.¹

On December 11, 1971, approximately four months after the sale,² McLawhorn was arrested and later indicted. He was charged in separate counts with illegal transportation,³ possession⁴ and sale⁵ of a narcotic drug.⁶ He first moved to dismiss the indictments for failure to provide a speedy trial.⁷ McLawhorn alleged at the hearing on the motion and again at trial that the delay in charging him resulted in his inability to secure the attendance of the informant as a witness to the defense of entrapment. The trial court denied the motion to dismiss and held that the State was entitled to invoke the privilege of nondisclosure to support its refusal to reveal the informant's identity.⁸

From his conviction and sentence on the three counts McLawhorn unsuccessfully appealed to the North Carolina Court of Appeals. An attempted appeal to the Supreme Court of North Carolina was denied for failure to raise a substantial constitutional question. An application for a writ of habeas corpus was denied by the district court in a memorandum opinion. We grant a certificate of probable cause for appeal and consider the petition on its merits.

II

Petitioner contends that the State may not conceal facts concerning the true identity, present whereabouts, and status of an "informant" to whom delivery of the drug was made and who alone made all arrangements for the sale.⁹

Although this circuit has not had previous occasion to examine fully the limits of the nondisclosure privilege,¹⁰ decisions of other circuits and the Supreme Court are persuasive. After reviewing those cases and taking into account underlying policy considerations, we conclude that the State could not properly claim the nondisclosure privilege under the facts of this case.

The leading case involving the right of an accused to require disclosure of the identity of an informant is Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L.Ed.2d 639 (1957). There the Court characterized the problem as one calling for the balancing of the public interest in protecting the flow of information respecting criminal activities against the individual's right to prepare his defense. No fixed rule with respect to disclosure was established by the Court. Whether nondisclosure is warranted must depend upon the particular circumstances of each case, taking into consideration the crime charged and the possible defenses, the possible relevance and significance of the informant's testimony, and other related factors. Roviaro v. United States, supra, 353 U.S. at 62, 77 S.Ct. 623; Miller v. United States, 273 F.2d 279, 281 (5 Cir. 1959); Gilmore v. United States, 256 F.2d 565, 566 (5 Cir. 1958).

The public interest referred to by the Supreme Court in Roviaro, supra, concerns the prevention, detection, and prosecution of criminal acts. We are keenly aware that law enforcement officers dealing with a large number of crimes, especially in the area of the narcotics traffic, must depend upon informants to furnish information concerning criminal activities; privileged communications of this nature must be encouraged if law enforcement officers are to be held to the task of solving and prosecuting crime; if the identity of the informant must be routinely disclosed undoubtedly such sources of information would disappear almost immediately. Still, this valid public interest must be balanced against the individual's right to prepare a defense. The privilege of nondisclosure must give way where disclosure is essential or relevant and helpful to the defense of the accused, lessens the risk of false testimony, is necessary to secure useful testimony, or is essential to a fair determination of the case. Roviaro v. United States, supra; Miller v. United States, supra; Gilmore v. United States, supra; Portomene v. United States, 221 F.2d 582 (5 Cir. 1955); Sorrentino v. United States, 163 F.2d 627 (9 Cir. 1947). Limitations on the privilege of nondisclosure arise from the Fourteenth Amendment's requirement of fundamental fairness to the accused. Roviaro v. United States, supra; Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L.Ed.2d 707 (1969).

In undertaking to balance the interests here involved we look to the decisions of the Supreme Court and of other circuits as they appear properly applicable to the particular circumstances and relevant factors of this case. It is important to determine those who have been treated by the courts as tipsters as distinguished from those labeled as "participants." In determining whether invocation of the privilege of nondisclosure is to be sustained a distinction has frequently been made based on the nature of the informant's activities, that is, whether the informant is an active participant in the offense or is a mere tipster who supplies a lead to law enforcement officers to be pursued in their investigation of crime.¹¹ Applying this distinction, disclosure of the informant's identity is required where the informant is an actual participant, particularly where helps set up the criminal occurrence. Roviaro v. United States, supra; Gilmore v. United States, supra; Portomene v. United States, supra; United States v. Conforti, 200 F.2d 365 (7 Cir. 1952); Sorrentino v. United States, supra. Therefore, one 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.¹²

On the other hand, the 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. Miller v. United States, supra; Williams v. United States, 273 F.2d 781 (9 Cir. 1959); Anderson v. United States, 106 U.S. App.D.C. 340, 273 F.2d 75 (1959); Pegram v. United States, 267 F.2d 781 (6 Cir. 1959); United States v. Conforti, supra; Sorrentino v. United States, supra. This appears to be the generally accepted rule where the informant merely provides a lead or tip that furnishes probable cause for a search and seizure. Ordinarily, knowledge of the identity of a tipster would not be essential in preparing the defense of the accused and the public interest in protecting such informants should weigh heavily in favor of nondisclosure.¹³ However, where the informant is an actual participant, and thus a witness to material and relevant events, fundamental fairness dictates that the accused have access to him as a potential witness. In such instances disclosure of identity should be required.

The facts in the case at bar clearly indicate that the informant was a participant in the incident which resulted in the arrest and conviction of petitioner. The unidentified informant initially suggested that petitioner dealt in drugs. There is evidence that he made confidential telephone calls to petitioner in an attempt to arrange a sale. He made the initial face-to-face contact with the petitioner, conversed with him several moments in private and then introduced him to Daughtry. The informant, riding in the front seat with petitioner while Daughtry rode in the back seat, observed and engaged in the negotiations for the sale. He actually took delivery of the drug, passed the package back to Daughtry, and paid at least a part of the purchase price with money he had on his person. It is apparent that the informant engineered the events leading up to the criminal occurrence and was a material witness who could testify directly from personal knowledge concerning the transportation,¹⁴ possession,¹⁵ and sale¹⁶ of cocaine. Indeed his testimony was mandated in order to...