State v. Parks

• Decision Date: 17 December 1975
• Docket Number: No. 7526SC491,7526SC491
• Citation: 220 S.E.2d 382,28 N.C.App. 20
• Parties: STATE of North Carolina v. Mason Freeman PARKS.
• Court: North Carolina Court of Appeals

Page 382

220 S.E.2d 382

28 N.C.App. 20

STATE of North Carolina v. Mason Freeman PARKS.

No. 7526SC491.

Court of Appeals of North Carolina.

Dec. 17, 1975.

Certiorari Denied and Appeal Dismissed Feb. 3, 1976.

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.

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.

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 the was dealing with a safe buyer, the relationship became one...