State v. Simmons

Decision Date16 February 1982
Docket NumberNo. 8118SC769,8118SC769
Citation56 N.C.App. 34,286 S.E.2d 898
CourtNorth Carolina Court of Appeals
PartiesSTATE of North Carolina v. Irving Houston SIMMONS.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen., David Gordon and Sp. Deputy Atty. Gen. Jo Ann Sanford, Raleigh, for the State.

Appellate Defender Project for North Carolina by Appellate Defender Adam Stein, Raleigh, for defendant-appellant.

ROBERT M. MARTIN, Judge.

Prior to his trial, defendant filed a motion requesting that the State be required to furnish the identity of an informant or, in the alternative, that the cases against him be dismissed. The person defendant wanted identified in full was the man called "Pete." The record shows that, on the day of the trial, his full name was divulged. Defendant's alternative motion to dismiss was denied by the trial court.

The defendant now assigns as error the trial court's denial of his motion to disclose the full identity of "Pete" and his motion to dismiss. Citing Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) and our recent case, State v. Hodges, 51 N.C.App. 229, 275 S.E.2d 533 (1981), the defendant contends that the court's denial of his motions deprived him of his constitutional rights to present a defense, to confront his accusers, and to be afforded fundamental fairness and due process of law.

The State has the privilege, in appropriate situations, to withhold from disclosure the identity of persons who furnish to law enforcement officers information concerning violations of laws which the officers must enforce. Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938). The purpose of this privilege is to advance and protect the public interest in effective law enforcement. Roviaro v. United States, supra. The privilege, however, has certain limitations, one of which arises from the fundamental requirements of fairness to the accused. Id. "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." Id. 353 U.S. at 60-61, 77 S.Ct. at 628, 1 L.Ed.2d at 645.

With these principles guiding our analysis of the factual situation in the case sub judice, we have determined that defendant's constitutional rights were not violated by the trial court's denial of his motions for disclosure and dismissal. It is important to note that there was nothing in the record to indicate that "Pete" was an informer or that he participated in the drug transaction for which defendant was tried. The State in no way relied on "Pete's" activities to gain an indictment against, or a conviction of, the defendant. When we contrast this with the factual setting in Roviaro, we find that that case's limitation on the State's privilege does not apply here. In Roviaro, the informant, "John Doe," was the person actually purchasing the drugs from the defendant. Defendant's convictions were obtained through testimony of alleged witnesses who observed the transactions without defendant's knowledge. As the Supreme Court noted, as far as Roviaro knew, he and "John Doe" were alone and unobserved during the crucial occurrence for which he was indicted. By contrast, in the case before us, Officer Farrish was the one who purchased the drugs from defendant, and she was the prosecuting witness against him. The State's case did not require any evidence concerning "Pete."

Moreover, we find that the Hodges case which this Court recently decided is distinguishable. In Hodges, unlike this case, the person whose name was undisclosed was allegedly a participating informant. Furthermore, once the defendant discovered the name of the informant (the day before trial) he moved for a continuance, but the motion was denied. This Court found that denial error. In the present case, defendant made no motion for a continuance. Once he received the full name of the person whose identity he sought, he was, as the record shows, adamant about a dismissal:

THE COURT: Well, what is your motion now, Mr. Carroll?

MR. CARROLL: I made my motion in the alternative, either disclosure or dismissal of the cases.

THE COURT: Either disclosure or dismissal?

MR. CARROLL: Yes, sir.

THE COURT: Well, he has now disclosed it.

MR. CARROLL: I can only repeat what I have said. As far as disclosure goes, we don't have reasonable access to him at this stage.

Based on the foregoing, we conclude that defendant's constitutional rights to present a defense, to confront witnesses against him, and to be afforded fundamental fairness and due process of law were not violated.

Defendant's second argument is that he did not receive a fair trial and due process of law when the State cross-examined the defendant about his prior criminal record. The record shows, however, that defendant objected to only two of the questions to which he now takes exception. Those objections were sustained. Of the other eleven exceptions, defendant's failure to object to the questions acted as a waiver of his objections so that admission of the evidence will not be reviewed on appeal unless the evidence was forbidden by statute or resulted from questions asked by the trial judge or by a juror. State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534, cert. denied, 400 U.S. 946, 91 S.Ct. 253, 27 L.Ed.2d 252 (1970). The two exceptions allowing review by this Court are not present here, and the cases defendant cites in support of his argument that we should waive the requirement of an objection are not pertinent. State v. Locklear, 294 N.C. 210, 241 S.E.2d 65 (1978), State v. Smith, 279 N.C. 163, 181 S.E.2d 458 (1971), and State v. Miller, 271 N.C. 646, 157 S.E.2d 335 (1967), all involved improper or abusive comments or arguments made by the solicitor. Defendant's assignment of error is overruled.

For the same reason, we reject defendant's argument that he was deprived of a fair trial and of due process of law when the State asked the defendant questions concerning what statements he had made to a police officer. Defendant's failure to object to the questions constituted a waiver of his objections, and this Court is not compelled to review the matter on appeal.

Defendant's fourth assignment of error raises the question of whether he was denied his constitutional guarantee to effective assistance of counsel at the trial on the habitual felon indictment when the court denied his request for appointment of new counsel and left the defendant to represent himself. The right of defendant to be represented by counsel is well-established, Argersinger v. Hamlin...

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7 cases
  • Hawkins v. Freeman
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • June 9, 1999
    ...habitual felon to 50 years imprisonment and to a concurrent 10-year sentence on the drug trafficking offense. See State v. Simmons, 286 S.E.2d 898, 900 (N.C. Ct. App. 1982). At the time, he had an extensive record of other arrests and convictions, some under the surname "Simmons," dating ba......
  • Hawkins v. Freeman
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • March 26, 1999
    ...of rape, two counts of aggravated assault with intent to commit rape and one count of armed robbery. See State v. Simmons, 56 N.C.App. 34, 286 S.E.2d 898, 900 (Ct.App.N.C.1982). His FBI record reveals other less serious charges as well, both as an adult and as a From the beginning of his in......
  • Potter v. Potter
    • United States
    • North Carolina Court of Appeals
    • October 6, 1998
    ... ... Jonathan and Candice were both born in Tennessee and lived in that state until the parties' separation ...         On 25 July 1996, plaintiff filed the instant action seeking divorce and custody of Jonathan and ... ...
  • State v. Michael
    • United States
    • North Carolina Court of Appeals
    • April 2, 1985
    ...(1980) (statute fully satisfies the constitutional requirement that waiver of counsel must be knowing and voluntary); State v. Simmons, 56 N.C.App. 34, 286 S.E.2d 898 (trial court must make a thorough inquiry to determine whether to allow or deny the request to proceed pro se in accordance ......
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