State v. Newkirk

• Decision Date: 19 February 1985
• Docket Number: No. 844SC329,844SC329
• Parties: STATE of North Carolina v. Rufus NEWKIRK, Jr.
• Court: North Carolina Court of Appeals

Page 518

325 S.E.2d 518

73 N.C.App. 83

STATE of North Carolina v. Rufus NEWKIRK, Jr.

No. 844SC329.

Court of Appeals of North Carolina.

Feb. 19, 1985.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Douglas A. Johnston, Raleigh, for the State.

Appellate Defender Adam Stein by James R. Glover, Raleigh, for defendant.

WELLS, Judge.

Defendant brings forth three assignments of error, contending that the trial court erred in (1) failing to require the state to account for the whereabouts of its confidential informant, Earl Gray; (2) failing to adequately instruct the jury so as to require that the state prove both sale and delivery counts as to Officer Smith; and (3) entering judgment for two counts of possession of the same controlled substance. We find no prejudicial error.

In his first assignment of error, defendant contends that the trial court improperly refused to require the state to use reasonable efforts to produce Earl Gray at trial. Essentially, defendant argues that he was entitled to an order from the trial court directing the state to attempt to locate the confidential informant, or to make a showing that his absence occurred in spite of reasonable efforts to ensure his presence at trial.

It is well established that the state is privileged to withhold from a defendant the identity of a confidential informant, with certain exceptions. The test applied, when disclosure of an informant's identity is requested, is set forth in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The government, to promote disclosure of crimes, may withhold a confidential informant's identity except when disclosure of a communication will not reveal the name of the informer, or when the informer's identity has already been disclosed.

A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer's 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, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.

Id.; see also State v. Gilchrist, 71 N.C.App. 180, 321 S.E.2d 445 (1984). Once defendant has made a "plausible" showing of the materiality of the informer's testimony, United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), State v. Grainger, 60 N.C.App. 188, 298 S.E.2d 203 (1982), disc. rev. denied, 307 N.C. 579, 299 S.E.2d 648 (1983), the trial court must balance the public's interest with defendant's right to present his case "taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Roviaro v. United States, supra; see also State v. Cameron, 283 N.C. 191, 195 S.E.2d 481 (1973). Two factors weighing in favor of disclosure are (1) the informer was an actual participant in the crime compared to a mere informant, e.g., Roviaro v. United States, supra; State v. Ketchie, 286 N.C. 387, 211 S.E.2d 207 (1975), and (2) the state's evidence and defendant's evidence contradict on material facts that the informant could clarify, McLawhorn v. State of North Carolina, 484 F.2d 1 (4th Cir.1973); State v. Orr, 28 N.C.App. 317, 220 S.E.2d 848 (1976). Several factors vitiating against disclosure are whether the defendant admits culpability, offers no defense on the merits, or the evidence independent of the informer's testimony establishes the accused's guilt. State v. Cameron, supra.

Upon cross examination of Officer Smith, defendant, for the first time, requested the identity and current whereabouts of the confidential informer briefly mentioned in Officer Smith's direct examination. The state initially objected to disclosure but promptly withdrew the objection. Officer Smith identified the informer as Earl Gray, but denied any knowledge of his present whereabouts. Following cross examination, defendant moved for the trial court to compel the state to produce Gray's current address, telephone number, or contact him in order "to see if he's [sic] any exculpatory evidence that we might use." Defendant justified this request based on Officer Smith's testimony that Gray was a witness to the occurrences inside the restaurant and remained in defendant's presence while Officer Smith and Shaheed consummated the alleged drug sale outside.

The trial court extensively questioned Lieutenant Paul Buchanan, Supervisor of the Special Operations Division in charge of the undercover operation, as to Gray's present whereabouts. Buchanan informed the trial court that Gray was a professional confidential informant who moved about the state and that he had attempted to locate Gray for two months without success, even making inquiries of the State Bureau of Investigation, who had employed Gray on occasion and was Gray's last known employer. The trial court denied defendant's motion indicating if Gray had been in Onslow County that he would compel his production, but as his testimony would not appear to be helpful to defendant, attempting to locate him might jeopardize any undercover operation he was presently involved in.

We hold that the trial court's denial of defendant's motion to compel the state to locate Gray was proper. Assuming for the purpose of this appeal that Gray was a participant in the alleged transactions and that his testimony could have helped clarify Officer Smith's testimony, the state cannot be compelled to produce a witness it cannot, in good faith, locate after a reasonable search. In State v. Brockenborough, 45 N.C.App. 121, 262 S.E.2d 330 (1980), the court affirmed the trial court's denial of the defendant's request for the state to produce an informer stating:

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