State v. Cameron

• Decision Date: 11 April 1973
• Docket Number: No. 32,32
• Citation: 283 N.C. 191,195 S.E.2d 481
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. William Fred CAMERON.

Page 481

195 S.E.2d 481

283 N.C. 191

STATE of North Carolina v. William Fred CAMERON.

No. 32.

Supreme Court of North Carolina.

April 11, 1973.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. Charles M. Hensey, and Associate Atty. Henry E. Poole, Raleigh, for the State.

William H. Murdock, Edward G. Johnson, and Norman E. Williams, Durham, for defendant-appellant.

MOORE, Justice.

Defendant first assigns as error the failure of the trial court to require the solicitor to disclose the name of the confidential informer who accompanied Officer Conant to defendant's home.

'It is the general rule, subject to certain exceptions and limitations . . . that the prosecution is privileged to withhold from an accused disclosure of the identity of an informer.' Annot., 76 A.L.R.2d 262, 271. 'The privilege is founded upon public policy, and seeks to further and protect the public interest in effective law enforcement. It recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officers, and by preserving their anonymity, encourages them to perform that obligation. The privilege is designed to protect the public interest, and not to protect the informer.' Id. at 275. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The propriety of disclosing the identity of an informer depends on the circumstances of the case. Roviaro v. United States, supra; State v. Moore, 275 N.C. 141, 166 S.E.2d 53 (1969); State v. Boles, 246 N.C. 83, 97 S.E.2d 476 (1957).

We find in 76 A.L.R.2d, at p. 283:

'. . . (T)he privilege of nondisclosure will be upheld where disclosure of the identity of an informer does not aid the defendant in regard to his defense, and is not essential nor relevant (material) for that purpose or for the fair disposition of the case. Important factors in this connection are that the accused admits or does not deny guilt, or makes no defense on the merits, or that there is independent evidence of accused's guilt.'

See State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E.2d 405 (1971); State v. Swaney, 277 N.C. 602, 178 S.E.2d 399 (1970).

In the present case, defendant made no defense on the merits. The evidence which established the guilt of defendant was independent and did not rely on any facts provided by the informer. Furthermore, the trial court found as a fact on evidence offered on Voir dire that, in the opinion of Officer Conant, defendant and the person with the officer were acquainted. Based on this finding and the further finding that the unknown person was not present at the time of the actual sale of the heroin, the court concluded that the name of this person was not necessary to the defense of defendant's case. We hold that the trial judge properly denied defendant's motion to disclose the identity of the informer.

Defendant next assigns as error the denial of his motion for a bill of particulars. G.S. § 15--143 provides that when further information not required to be set out in the bill of indictment is desirable for the better defense of the accused, the court upon motion may in its discretion require the solicitor to furnish a bill of particulars. The function of a bill of particulars is to inform the defendant of the nature of the evidence which the State proposes to offer. State v. Overman, 269 N.C. 453, 153 S.E.2d 44 (1967). The granting or denial of motions for a bill of particulars is within the discretion of the court and not subject to review except for palpable and gross abuse thereof. State v. Spence, 271 N.C. 23, 155 S.E.2d 802 (1967); State v. Porth, 269 N.C. 329, 153 S.E.2d 10 (1966); State v. Overman, supra; State v. Lippard, 223 N.C. 167, 25 S.E.2d 594 (1943).

The indictment in this case contained the following information: (1) the name of the defendant, (2) the date on which the offenses occurred, (3) the type of illegal drug possessed and sold, (4) the name of the person to whom the illegal drug was sold, (5) the quantity sold, (6) the amount charged for the illegal drug, and (7) the county in which the illegal acts took place. Defendant was also furnished a list of the State's witnesses who might be called in the case. All the information surrounding the commission of the crime was contained in the bills of indictment or could have been obtained by the defendant from an examination of the State's witnesses. Under these circumstances, defendant has failed to show any abuse of discretion. This assignment is overruled.

On 12 April 1972, the date on which the present cases were calendared for trial, a special Durham County granted jury returned two bills of indictment against defendant, one charging him with possession of 700 bindles of heroin and the other for continuing criminal enterprise. The bills were returned just prior to the noon recess. Defendant was in the courtroom and was immediately arrested. The court then set bond in the amount of $200,000. The Durham Sun that afternoon carried a front page story concerning the two new bills of indictment against defendant. That same afternoon defendant moved for a continuance of the present cases on account of this adverse publicity. The motion was denied and defendant assigns this denial as error.

The trial judge, before the jury was selected, made the following statement to the jurors:

'Now, ladies and gentlemen of the jury, mostly ladies, looks like, I mentioned to you yesterday afternoon before court closed that there was some publicity in the paper concerning Mr. Cameron about another matter, not the matter that is being tried here, and requested that you not read any newspaper so that it would not influence you. I asked you also not to listen to any radio reports or television matters.

'Now, as I told you yesterday, ladies and gentlemen, all we are interested in and the only reason for any of us being here is to see that people get a fair trial. That fair trial presupposes a jury that will base its verdict solely and entirely on two things, and two things alone: The first is the sworn testimony that comes from the witness stand; the second the instructions as to the law which the Court will give you in its charge.

'I do want to ask, however, if any of you heard or read anything concerning Mr. Cameron that would in any way influence or affect your verdict in this case. If any of you have, I wish you would please tell me now.

(No response)

'Do any of you know of any reason whatsoever whether you have been asked the question by the attorneys or by the Court, do any of you have any doubt in your mind at this point that you can give Mr. Cameron a completely fair and impartial trial on these charges which allegedly occurred last February, or February a year ago? Do any of you have any reservation at all?

(No response)'

The presiding judge throughout the trial clearly and explicitly instructed the jurors that they were not to read any newspaper accounts or listen to television or radio comments concerning defendant. There is nothing to suggest that these instructions were not complied with by the jurors. In addition, and just before submitting the case to the jury, the trial judge inquired of the jurors if they had read or heard anything about defendant and, if so, had they been in any manner influenced by it. None indicated that he had.

'A motion for continuance is ordinarily addressed to the discretion of the trial judge and his ruling thereon is not subject to review absent abuse of discretion.' State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1971); State v. Stinson, 267 N.C. 661, 148 S.E.2d 593 (1966). In the present case, it does not appear that any juror read or heard about the other charges against defendant or that any juror was influenced or prejudiced by this publicity. Therefore, no abuse of discretion is shown, and defendant's assignment of error to the denial of his motion to continue is overruled.

Defendant further contends, however, that his motion for a mistrial made during the trial, based upon this same adverse publicity, should have been granted.

'As a general rule the allowance or refusal of a motion for mistrial in a criminal care less than capital rests largely in the discretion of the trial court.' 3 Strong, N.C. Index 2d, Criminal Law § 128, p. 49, and cases therein cited. 'In the absence of any showing of prejudice, no abuse of discretion is shown.' State v. McVay and State v. Simmons, 279 N.C. 428, 183 S.E.2d 652 (1971). State v. Tippett, 270 N.C. 588, 155 S.E.2d 269 (1967). Error will not be presumed. State v. Partlow, 272 N.C. 60, 157 S.E.2d 688 (1967); State v. Shepherd, 230 N.C. 605, 55 S.E.2d 79 (1949); 3 Strong, N.C. Index 2d, Criminal Law § 167, p. 127. In the present case no prejudice or abuse of discretion is shown. For the same reasons that the motion for continuance was denied, this assignment is overruled.

Defendant next assigns as error the denial of his motions for nonsuit at the close of the State's evidence and at the close of all the evidence.

Officer Conant testified that defendant had in his possession 15 bindles of a substance later determined to be heroin and that defendant sold these 15 bindles containing heroin to Officer Conant for $60. This evidence is sufficient to be submitted to the jury and to support a verdict of guilty on both charges. Therefore, the motions for judgment as of nonsuit were properly denied. State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971); State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971); State v. Miller, 268 N.C. 532, 151 S.E.2d 47 (1966).

Finally, defendant contends that possession of a narcotic drug is a lesser included offense of the sale of a narcotic drug and that consecutive sentences for separate convictions for possession and for sale constitute former jeopardy under both the North Carolina and United States Constitutions. Defendant contends that it is necessary to possess a drug in order to sell it and that possession and sale...