State v. Perry, 7114SC691

• Decision Date: 29 December 1971
• Docket Number: No. 7114SC691,7114SC691
• Citation: 185 S.E.2d 467,13 N.C.App. 304
• Parties: STATE of North Carolina v. Nathaniel Lee PERRY, Jr.
• Court: North Carolina Court of Appeals

Page 467

185 S.E.2d 467

13 N.C.App. 304

STATE of North Carolina v. Nathaniel Lee PERRY, Jr.

No. 7114SC691.

Court of Appeals of North Carolina.

Dec. 29, 1971 Appeal Dismissed by Supreme Court March 7, 1972.

Atty. Gen. Robert Morgan by Associate Atty. Gen. Louis W. Payne, Jr., for the State.

William H. Murdock, Durham, and Felix B. Clayton, for defendant appellant.

MORRIS, Judge.

The evidence for the State tends to show that Dr. Eugene Bartlett and his family lived in a home located 1/4 of a mile down a private driveway off Infinity Road in Durham County. There are three other houses located on the same private driveway. Durham County Deputy Sheriff Utley phoned the Bartletts on 3 March 1971 and told them that based upon information from a confidential informant, he believed that their house was going to be broken into. The police suspected that someone would try to steal a valuable collection of firearms kept by Dr. Bartlett in his home. Deputy Utley asked permission to attempt to apprehend the people who were going to break in by setting up a stakeout in the Bartlett house the next morning. Deputy Utley and Detective Martin of the Durham Police Department arrived at the house before 8:00 a.m. on 4 March 1971, and Dr. Bartlett then left with his children. After the officers had arrived, the phone rang once, Mrs. Bartlett answered and the caller hung up without saying anything. The State's evidence shows that there is a public telephone booth about 1 1/2 miles away from the Bartlett home. Five minutes later at about 8:30 a.m., Mrs. Bartlett and her mother left. Deputy Utley and Detective Martin were left alone in the house and hid in a bathroom off the kitchen. At about 10:15 a.m. the telephone rang nine times and approximately 15 minutes later, the phone rang 15 more times. The officers didn't answer the phone either time. About five minutes later, the officers heard a car in the driveway, and then the doorbell rang eight or ten times. Soon thereafter, they heard glass breaking, the back door opening and people entering the house. A few seconds later, Deputy Utley and Detective Martin stepped out from the bathroom into the kitchen where they observed three men. Holding shotguns, the officers told the three suspects to freeze but one of them ran outside. Detective Martin gave chase and when he was 25--30 feet away, pointed his shotgun at the man who fell to his knees, threw his arms over his head and said 'Oh God, don't shoot me'. While outside the house, Detective Martin observed a gold Pontiac G.T.O. automobile parked in the driveway 20--25 feet away. Detective Martin saw a man under the steering wheel with his head turned over his shoulder looking directly at him through the side window and identified him as the defendant. The automobile immediately took off at a high rate of speed down the private driveway and as he made the left turn on to Infinity Road approximately 150 feet away, the driver turned and again looked directly at Detective Martin. Detective Martin had known the defendant for 12 years, had seen defendant drive a gold Pontiac G.T.O. on previous occasions and was positive he recognized the defendant on the day in question.

Detective Utley heard the automobile leave at a rapid rate of speed, but he was inside the house and never saw the occupant of the car. A neighbor who lives about one block away from the Barlett house saw a gold colored automobile with four men in it pass by slowly going towards the Bartlett house at about 10:30 in the morning. Five minutes later she saw the same car coming from the direction of the Bartlett house at a high rate of speed down the private driveway with only one man in it. The defendant presented no evidence, and his motions for nonsuit were denied.

Defendant assigns as error the refusal of the court to compel disclosure of the confidential informant's identity and the content of his communications. In order to sustain a conviction for felonious housebreaking, the State must prove an unlawful breaking or entering of the dwelling house of another with the intent to commit a felony or other infamous crime therein. State v. Cook, 242 N.C. 700, 89 S.E.2d 383 (1955). Defendant contends that the 'felonious intent' in this case can only be proved by information supplied by the unidentified informant; and that according to State v. Fletcher (State v. Arnold), 279 N.C. 85, 181 S.E.2d 405 (1971), disclosure of the informant's identity is essential to lessen the risk of false testimony by him. In Fletcher, supra, both defendants relied upon the defense of entrapment to support their assignment of error. Here the defendant contends that he knew nothing about the robbery. By denying his guilt, defendant's case is factually distinguishable from that of Fletcher, supra, and State v. Swaney, 277 N.C. 602, 178 S.E.2d 399 (1971), appeal dismissed 402 U.S. 1006, 91 S.Ct. 2199, 29 L.Ed.2d 428, applies instead, wherein the Court, through Justice Moore, said:

"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.' (Citation omitted.) '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.' (Citation omitted.) The propriety of disclosing the identity of an informer depends on the circumstances of the case. (Citations omitted.)' At p. 608, 178 N.E.2d at p. 403.

There was no evidence of entrapment in this case, and there is sufficient evidence of defendant's guilt, which is of an independent origin and not from the informant's tips, to convict him. Thus under the circumstances of this case we hold that the...